Cynthia Farina, Hoi Kong, Cheryl Blake, Mary Newhart, and Nik Luka have published Democratic Deliberation in the Wild: The McGill Online Design Studio and the RegulationRoom Project, Fordham Urban Law Journal, 41, 1527-1580 (2014).
The full text appears to be available from commercial vendors.
Here are excerpts from the introduction:
[…] Here we describe two projects, both being conducted by university researchers, that use innovative technological tools to motivate and support broader, better citizen engagement in government decision making. One is a digitally-mediated community-based urban design studio. […] A collaboration among law and urban planning faculty of McGill University and a Montréal community organization, this project aims to involve area residents in the redevelopment of a forty-five acre post-industrial site in Montréal’s midtown Bellechasse sector. […] The second is RegulationRoom.org, an online website that supports informed public participation in the process of making government regulations (rulemaking). […]
[…] the projects […] aim to discover how the digitally empowered citizen-participant can be meaningfully engaged through processes designed to prime deliberative discussion and knowledge production, rather than mere voting and venting.
The Article proceeds as follows: Part I discusses the problematic yet promising relationship between the theory of deliberative democracy and the practice of public participation in government decision making. Part II gives an overview of the MODS Bellechasse project and the RegulationRoom project, and then focuses on how each project uses technology and human effort to lower the principal barriers to broader, better public participation. Part III discusses lessons learned from the projects and identifies challenges that remain. […]
The federal Privacy Commissioner has just released a report giving guidance on the privacy implications of police wearing body-worn cameras, and what police need to do to comply with privacy laws.
It points out that the issues around body-worn cameras are more complex than on fixed cameras.
As is usually the case with privacy issues, it is about balance – in this case balancing the advantages of the cameras with privacy concerns.
The report has this to say about balance:
There are various reasons why a LEA might contemplate adopting BWCs. LEAs could view the use of BWCs as bringing about certain benefits to policing or other enforcement activities. For example, in addition to being used to collect evidence, BWCs have been associated with a decrease in the number of public complaints against police officers as well as a decrease in the use of force by police officers. At the same time, BWCs have significant privacy implications that need to be weighed against the anticipated benefits. As the Supreme Court of Canada has noted, an individual does not automatically forfeit his or her privacy interests when in public, especially given technological developments that make it possible for personal information “to be recorded with ease, distributed to an almost infinite audience, and stored indefinitely”. And as the Supreme Court added more recently, the right to informational privacy includes anonymity which “permits individuals to act in public places but to preserve freedom from identification and surveillance.”
It goes on to talk about the tests to determine if the intrusion is justified, and what uses and safeguards are appropriate.
It’s worth a read even if just for its general discussion around cameras and privacy.
I recently sat down for an interview with Sharon Nelson and Jim Calloway for The Digital Edge podcast. Here’s the blurb from Legal Talk Network:
In this episode of The Digital Edge, Sharon Nelson and Jim Calloway interview lawyer and legal technology blogger Sam Glover about when technology became an issue for attorneys, how they can get in trouble due to ignorance, and what all attorneys need to know about hackers, cloud services, and the resulting ethical duties. First, Glover explains that lawyers are getting into trouble in the courtroom by not knowing about how technologies like Twitter work, therefore losing cases that could be easily won. Concerning cyber security, Glover discusses the many reasons lawyers cannot simply outsource technology knowledge:
Simply put, you cannot avoid technology as a lawyer anymore. There are courses, blogs, webinars, books, and many other ways to become educated about legal technology.
When I was a new, fresh lawyer, I often lamented the lack of a network of legal professionals who could mentor and support me in my career development. I came from a rural, agricultural background and didn’t know a single lawyer before I went to law school. As I soon learned, that put me at something of a disadvantage in both job seeking and finding the right career path for me.
In the result, I learned early the value of forging and nurturing relationships within the legal profession and began to work hard at developing my own networks.
These days, I am well past describing myself as a new lawyer, but still find myself seeking guidance from more senior counsel. More often, though I am now in the position of providing such advice and mentorship to law students and young lawyers. And it gives me great pleasure to be able to do so – whether providing guidance, suggesting alternative career paths or helping to match job seekers with current opportunities. The networks I’ve cultivated enable me to effectively assist and support others in their professional journeys.
I’ve been helped along the way by a number of lawyers – some of whom I’ve written about here and here. It’s my intention that by providing career support to others on similar paths, I’m paying it forward. I can’t think of any better way to do so.
The next few months are transitional for many students and new lawyers. As you look ahead, I encourage you to watch for opportunities to pay it forward on behalf of those who supported your career, whether to law students looking for summer positions, articling students seeking placements or new calls looking for a first job. You won’t likely regret taking some time and making the effort to support those just entering our profession.
This year we had over 100 nominations for the best law firm website of 2015. With the help of Lawyerist contributors Gyi Tsakalakis, Andrew Cabasso, and Karin Conroy, Sam and Aaron narrowed the list to the ten best.
Best is a relative term, of course. Everybody has their own standards. In general, we were all looking for distinctive, well-designed, responsive websites with clear calls to action. In other words, websites that make the law firm look good and get visitors to contact the firm. For the most part, we all agreed on the best, but there are a couple of polarizing websites in the top 10. We’ll let you guess which are which.
Without further ado, here are the top ten …
(All links will open in a new tab to make it easier to visit them all.)
Accounting is a critical part for any business, and for many lawyers it’s something that they’d rather not have to deal with. Making sure that you stay in compliance with regulatory authorities, ensuring that the ObamaCare program helps you more than it hurts you, keeping the books updated periodically, and strategic tax planning are just a few of the things that a successful accounting system will cover. Unfortunately these tasks can be tedious, but don’t get bent out of shape as there’s a better option available.
What if you could make tax complexities a distant memory?
GLG Accounting knew that there was a better solution and tasked itself with developing specialized accounting services just for attorneys. There’s no longer a need for you to dedicate your time (or the time/resources of your firm) to handling your accounting in-house. A fully comprehensive solution will help take the load off while uncovering beneficial opportunities.
Developing a system of procedures and processes specifically for legal firms isn’t the easiest thing to do, but this team of highly experienced accountants came together and turned a dream into reality. Not only does this help clients handle their accounting in the most efficient manner possible, but it also ensures that each client has the most modernized accounting solution at their disposal. This alone is a true game-changer.
With so many accounting firms out there, it’s critical that we know which ones have truly proven to be the best in the industry. Here are 3 ways that GLG Accounting has set itself apart from the rest.
We knew that there had to be way, which is why we went and found the best accounting solution on the market. This is when we discovered Xero…
With Xero, our clients are able to get their data on the go while resting assured that their financial data is secure. Not only does this help them keep the finger on the pulse of their business, but it saves them tons of time by streamlining the entire accounting process. The best part is that when our clients upload expenses or record new transactions, it automatically updates us so that we can keep your books up-to-date at all times.
If you’d like more information or would like to schedule a consultation, please contact us. We’d be happy to show you how you can embrace the best accounting solution while minimizing your tax liability.
GLG Accounting will beat anyone’s prices on filing your taxes. Just get in touch with us for more details.
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. Lloyd v. Napanee (Town), 2015 ONSC 761
 Having identified Rankins Corner as a “hot spot”, I find that Napanee either knew or should have known that in a winter event such as the snow fall on January 3, 2003, Rankins Corner would likely become an unreasonable risk to users of Cty Rd 9 and would, for that reason, require special winter maintenance treatment. That did not occur.
 Having found that Cty Rd 9 in Rankins Corner then was in a state of disrepair based on the then existing winter conditions, the onus shifts to the Town to establish on a balance of probabilities that a condition of non-repair existed, notwithstanding all reasonable efforts by the Town: Roycroft v. Kyte,  O.J. No. 296 at para. 48 and Thornhill v. Shadid, supra, at paras. 108-109. For reasons noted above, I find that the Town failed to discharge this evidentiary burden.
2. R. v. Oakes,  1 SCR 103, 1986 CanLII 46 (SCC)
Respondent was charged with unlawful possession of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act, but was convicted only of unlawful possession. After the trial judge made a finding that it was beyond a reasonable doubt that respondent was in possession of a narcotic, respondent brought a motion challenging the constitutional validity of s. 8 of the Narcotic Control Act. That section provides that if the Court finds the accused in possession of a narcotic, the accused is presumed to be in possession for the purpose of trafficking and that, absent the accused’s establishing the contrary, he must be convicted of trafficking. The Ontario Court of Appeal, on an appeal brought by the Crown, found that this provision constituted a “reverse onus” clause and held it to be unconstitutional because it violated the presumption of innocence now entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. The Crown appealed and a constitutional question was stated as to whether s. 8 of the Narcotic Control Act violated s. 11(d) of the Charter and was therefore of no force and effect. Inherent in this question, given a finding that s. 11(d) of the Charter had been violated, was the issue of whether or not s. 8 of the Narcotic Control Act was a reasonable limit prescribed by law and demonstrably justified in a free and democratic society for the purpose of s. 1 of the Charter.
3. R v Proctor, 2015 ABQB 97
As I have stated, non-disclosure will generally violate s. 7 only if it impairs the accused’s right to full answer and defence. Although it is not a precondition to a disclosure order that there be a Charter violation, a disclosure order can be a remedy under s. 24(1) of the Charter. Thus, where the adverse impact upon the accused’s ability to make full answer and defence is curable by a disclosure order, then such a remedy, combined with an adjournment where necessary to enable defence counsel to review the disclosed information, will generally be appropriate.
There may, however, be exceptional situations where, given the advanced state of the proceedings, it is simply not possible to remedy through reasonable means the prejudice to the accused’s right to make full answer and defence. In such cases, the drastic remedy of a stay of proceedings may be necessary. Although I will return to this matter in my discussion on the disclosure of records held by third parties, we must recall that, under certain circumstances, the defence will be unable to lay the foundation for disclosure of a certain item until the trial has actually begun and witnesses have already been called. In those instances, it may be necessary to take measures such as permitting the defence to recall certain witnesses for examination or cross-examination, adjournments to permit the defence to subpoena additional witnesses or even, in extreme circumstances, declaring a mistrial. A stay of proceedings is a last resort, to be taken when all other acceptable avenues of protecting the accused’s right to full answer and defence are exhausted.
The most-consulted French-language decision was Lévesque c. Vidéotron, s.e.n.c., 2015 QCCA 205
 Pour l’essentiel, l’appelant allègue que les intimées Vidéotron contreviennent aux articles 41, 219 et 228 de la Loi sur la protection du consommateur parce que le message diffusé sur le service Illico sur demande (« au canal 900 ») et ailleurs dans les documents informatifs indique que la durée de location des films commandés est de 24 heures, ce qui serait erroné en ce qui concerne les « Films pour adultes – Torride ». Pour ceux-ci, la durée de location varierait entre 9 et 18 heures, information que le consommateur ne peut obtenir qu’en utilisant certains chemins de navigation sur l’interface du « canal 900 ».
 L’appelant allègue que la durée de location est importante pour lui, car il peut choisir de louer ce type de contenu à une heure qui lui permettra de le visionner de nouveau à l’intérieur de la période de 24 heures, sans frais supplémentaires. Il réclame donc la résiliation des contrats de location intervenus et le remboursement des sommes payées ou, subsidiairement, une diminution du prix payé. Il réclame également des dommages punitifs.
* 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.
From the Verge:
[T]he program would give the NSA unprecedented access to the world’s computers, even when disconnected from the larger web. Viruses stored on a hard drive’s firmware are typically activated as soon as a device is plugged in, with no further action required. They’re also usually undetectable and survive reformatting, making them difficult to detect and remove.
This week Sam and Aaron wonder whether a lawyer could become an Uber driver to market a law practice, on obvious marketing, and Sam talks to Gyi Tsakalakis of AttorneySync about online marketing without the BS.Using Uber to Market a Law Practice
Maybe this is a crazy idea, but a guy out in San Francisco is marketing his jewelry business while driving for Uber. He isn’t pushy about it; he just makes his catalog and some samples available.
Assuming they could avoid the in-person solicitation problem by, you know, not soliciting passengers, couldn’t a lawyer do the same thing? Would it be skeevy marketing?What to Do Before Marketing Your Practice Online
Before you go and spend any money on online marketing, read this post.Interview: Gyi Tsakalakis
Sam interviewed Gyi Tsakalakis of AttorneySync about online marketing in an attempt to dispel myths about online marketing and search-engine optimization. They discuss what online marketing really is, whether SEO is still a thing, and Gyi explains the basics of putting together an online marketing strategy.Listen and Subscribe
To listen to the podcast, just scroll up and hit the play button.
Thanks to Ruby Receptionists for sponsoring this episode of our podcast.
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Here are excerpts from the most recent tips on SlawTips, the site that each week offers up useful advice, short and to the point, on technology, research and practice.
If you buy something online, you will likely have to enter various details into a form of some sort (e.g., name, address, phone number, email, credit card number, etc.). This can be a tad tedious if there are many fields on the form – you type a few characters, stop, reach for the mouse, then navigate to and click on the next field, go back to the keyboard, type a few more characters, then repeat the process again, and again…
Where Is Your Content Going
You spend good time and brain power creating a beautiful research work product. Then what happens? Today’s Tip: think about where your words go. Today’s Tip is brought to you by the office of my Outlook Junk Folder in conjunction with my Spam filter and my email rules. These offices are not hungry for YOUR content. …
What Are You Going to Do in Your Retirement?
So many articles on retirement all deal with the issue of finances and how to plan so you are not caught off guard on the money side. Since that aspect has been explored in detail, this article is going to take us in a totally different direction. As lawyers, we get so much of our personal identity from simply being lawyers that the idea of hanging up our robes and walking out the office wearing the title “Retired Lawyer” causes us panic and a sense of dread. Just *what* would we do with all that….time?…
According to the Energy & Policy Institute, Ontario is a world-wide hot-spot for litigation opposing wind energy. Opponents of wind power often have a heartfelt and deeply held belief that wind farms threaten their health and property values. But they have lost all Ontario legal cases based on concerns about human health, now including a constitutional challenge.
Wind farms have been actively expanding in Ontario since the Ontario Green Energy Act, 2009, took away municipal power to block wind farm development, and a Feed in Tariff for selling the resulting power provided a solid economic case. Such farms require a Renewable Energy Approval (“REA”), from the Ministry of Environment and Climate Change under the Environmental Protection Act (“EPA”). Each REA can be appealed to the Environmental Review Tribunal (ERT), but only on limited grounds including serious harm to human health.
Numerous anti-wind appeals to the ERT were rejected, because they did not meet this test. Anti-wind litigants then appealed to the courts, arguing that the statutory test was itself unconstitutional and contrary to their right to security of the person, guaranteed by the Canadian Charter of Rights and Freedoms. The Ontario Divisional Court has now definitively rejected that argument.
The anti-wind constitutional appeals
In Dixon v. Director, Ministry of the Environment, 2014 ONSC 7404, the Divisional Court heard appeals from three decisions of the ERT, each of which upheld an REA for an Ontario wind farm in Huron and Bruce counties:
a 33 MW, 15 wind turbine farm operated by St. Columban Energy LP (“St. Columban Wind Project”); the 270 MW, 140 turbine wind farm owned by K2 Wind Ontario Limited Partnership (“K2 Wind Project”); and the 180 MW, 92 turbine wind farm of SP Armow WindOntario LP (“Armow Wind Project”).
Under the EPA s. 145.2.1(2), the ERT hears appeals from REAs, but can turn them down only if “engaging in the renewable energy project in accordance with the renewable energy approval will cause (a) serious harm to human health…” The onus of proving such harm rests on those opposed to the REA. EPA s. 142.2.1(5) requires the Tribunal to confirm the Director’s decision if it “determines that engaging in the renewable energy project in accordance with the renewable energy approval will not cause [serious harm to human health]”.
No scientific evidence for fears about wind turbines
Study after study around the world has shown that, contrary to what many fear, wind farms at the Ontario minimum setbacks do not cause serious harm to human health, even though some people find them stressful and annoying.
“73….There is no sufficient evidence that the biological effects observed at the level below 40 dBLnight,outside are harmful to health…”
A recent study by Health Canada confirmed that some people find wind turbines stressful and annoying, but reached no conclusions as to why they do. In particular, they reported no evidence that the wind turbines cause the stress, as opposed to people’s fears about turbines.
The opponents’ evidence at these hearings revolved around the fears and beliefs that many wind farm neighbours have about adverse health effects from wind farms. The appellants argued that it was a breach of their Charter rights to the security of the person to expose them to the possibility of these harms:
“66….They contend that unlike the certainty of scientific knowledge which surrounds the effects of the discharge of a contaminant such as mercury, when dealing with the effect of noise and vibrations from commercial wind farms we are dealing with “known unknowns”. The uncertainty of the state of scientific knowledge about the effects on human health of commercial wind farms, according to the Appellants, materially informs the analysis of the Charter adequacy of the review tests found in EPA ss. 142.1(3) and 145.2.1(2). Which leads, then, to the question of whether the statutory test adopted by the Legislature materially departed from the consensus scientific view about the impact of commercial wind turbines on human health.”
But, the Court said, the opponents did not provide a scientific foundation for those fears:
“75…the Tribunals did not have before them expert evidence which seriously called into question the principle underpinning the EPA’s renewable energy project regulatory regime – i.e. that wind turbines which are set back 550m from a dwelling house and which do not generate noise levels in excess of 40 dBA at the lowest specified wind speed do not cause serious harm to human health based upon the current state of scientific knowledge.”
The Court agreed that the Tribunal had acted lawfully in rejecting the testimony of some wind farm neighbours, who testified that the wind farms are causing them adverse health effects, because of the lack of scientific support for these witnesses’ subjective belief in the cause of their symptoms.
Accordingly, the special EPA rules for approval of renewable energy projects, including wind farms, do not contravene the Charter:
“ …the statutory review test adopted by the Ontario Legislature in EPA ss. 142.1(3) and 145.2.1(2) in respect of the impact on human health of contaminants, such as sound and vibration, discharged from commercial wind farms does not, on its face, depart from the jurisprudential test for establishing a state violation of a person’s security of person under Charter s. 7.
 We also conclude that that statutory test did not depart from the consensus scientific view on the impact of commercial wind turbines on human health.”
The Court also rejected other procedural complaints raised by the wind opponents, who complained that they had been unfairly denied adjournments or other procedural requests during the Environment Review Tribunal hearings. Accordingly, all three appeals were dismissed and the renewable energy approvals given to the three wind farms were upheld.
I must preemptively refer you to John Gregory’s post from last year when it comes to canvassing the laws, and lack thereof, around how third party services (like Google, Facebook, PayPal, etc.) are obliged to act upon the death of an account holder. The whole legal terrain is fascinating, and consists of a stewing heap of conflicting rationales, policies, privacy legislation and common laws around the rights of heirs, deceased people, states and private corporations. It’s all heading in a better direction, probably, with the advent of uniform legislation like FADA, but for some time it has been quite a mess.
The question many have posed but no one can singularly answer is “what happens to the digital assets of a deceased person?” Does the data pass as a downloadable archive to the estate? Does a representative gain access in the place of the deceased owner or account holder? Is the information wiped? Or shall it sit on a server indefinitely with no one permitted to gain access?
Well, it really depends on the service. And that seems like mean comfort to many.“For many, Facebook has become a highly accessible (even mobile) vehicle for grieving and, ultimately, catharsis.”
Increasingly, especially with social media accounts that maintain a passive presence regardless of when a post was made, we see around us the digital ghosts of departed friends and family. Two years ago there was an interesting article discussing stories of “Facebook After Death” featuring anecdotes around a phenomenon which is only increasing—inexorable as death is (and now too our habits using social media). The article says, “As of 2012, 30 million people who maintained Facebook accounts have died, according to a report by The Huffington Post. Some studies approximate that nearly 3 million users have died in 2012 alone; 580,000 in the U.S.”
Someone even did a trendy infographic on the macabre topic:
The digital graveyard is only more crowded, with some idle genius calculating that the dead will outnumber the living on Facebook by 2065, if Facebook stops growing. Google established an Inactive Account Manager in mid-2013, but it has taken some time for Facebook to wade in and offer expanded controls beyond mere memorialization (which was introduced in 2009).
The news this past week, however, is that Facebook now lets you choose who will control your Facebook account through a proxy called a “Legacy Contact“. It’s not activated in Canada yet, but one may expect that could change.
Previously Facebook converted user account pages to “memorial” pages if someone close to the deceased reported the death to Facebook, and doing this removes many capabilities from the account. No curator was left with any ability to actually use the account. It remained a one-way exchange.
“The feature, called legacy contact, appears in Facebook’s security settings menu. There, you can select a specific Facebook friend who will be able to control certain aspects of your page, like your profile and header image, after you die. Alternatively, users can opt to have their account deleted after they pass away.”
Samantha Collier has also posted a personal story in connection with this news.
The Lifehacker article I linked to also has a link to an interesting post about creating a “in-case-of-emergency” kit for your data.
I’m still thinking about the “great disruption” that John O. McGinnis has been talking about and thought it might be useful to revisit the Disruptive Innovation in the Market for Legal Services conference held at the Harvard Law School in March of last year. Specifically the first panel of speakers where Clayton Christensen (author of the Innovator’s Dilemma and Harvard business administration professor) outlined what constitutes “disruptive innovation” in the market place.
Christensen defines disruptive innovation as something that transforms products or services “which are complicated and expensive into things that are so affordable and accessible so that a larger population of people have access to them.” This sounds very much like what’s been driving innovation in legal services; an attempt to reduce the complexity of practising of law so that a wider array of legal services will be available for those who need them.
His two examples both demonstrated how an innovative player in a particular industry creates a disruption by improving the performance of a specialized task and removing that task from a larger industry player. In the steel industry for example, specialized “mini mills” were able to produce rebar for concrete structures more efficiently than the traditional integrated steel mills could. At the same time the larger mills were happy to let this smaller and less profitable segment of their business go until eventually the mini mills had cornered the rebar market.
Once the mini mills had succeeded the price of rebar fell. It turns out that removing the “high cost competitor” from the equation negatively impacted on the mini mills ability to make a profit producing rebar. So they moved up the production line and developed an improved process for the next steel product produced by the integrated steel mills. The same cycle occurred until today the mini mill account for about 80% of all of the steel produced in the U.S.
Unfortunately the slides for the presentation were hidden from view but I think this is the diagram Christensen used to illustrate this process of a series of small disruptions taking hold in the market place:
Christensen made a couple of other interesting comment that resonated with me noting for example that this “trajectory of innovative development” aims to make good products better.
And this one about business evolution,
“… the business unit isn’t designed to evolve, they’re born and they die. But by creating mutant business models that can go after disruption the corporation can evolve even though the business units do not.”
Does this type of thing apply to the legal services industry? Does the legal services industry have a what Christensen calls a “technological core” which is the common element that enables this process of disruptive innovation?
Mike Rhodin (Senior VP, IBM Watson) was one of the respondents on this panel. He provided a wonderful history of the development of computers and computing. And he also talked about IBM’s evolution which has placed them as a leader in the “third era of computing”; the era that is ushering in “probabilistic and cognitive systems” that have the ability to learn.
Rhodin considers this third era of computing as the “next major disruption” representing a shift away from the “deterministic systems” that characterized the “monetization of the second era of computing.”
He describes our current information environment this way: 
“What’s happening … is the information is starting to become so vast that you can no longer rely on deterministic programming because you can’t process all the data. And because you can’t process all the data you have to start to rely on probabilistic techniques … statistics, analytics … You have to start developing systems that can understand things like human language … define the meaning of words, the meaning of information as it’s stored on disc. Not just rows and columns of numbers that are in traditional relational type databases or spread sheets, but actually in the written word, in the paragraphs of the law journals that you all read.”
So it’s starting to sound very much like this “third era of computing” may have a major influence on a language-based system like the law.
However … this is all well and good until you hear from a practising lawyer, someone like Sarah Reed (General Counsel, Charles River Ventures) who spoke after John Zuh (CEO of Legal Zoom).
Reed reminds us that the legal profession is “uniquely impervious to change.” She hasn’t been terribly impressed by some of the recent innovations in the legal industry.
She agrees that there have been some improved efficiencies through off-shoring of services or the use of e-discovery tools and she looks to some of the new products emerging pointing specifically to the area of search where there are some “big giants to be slain.” But the big players, the big law firms, have so far been good at adopting and absorbing these efficiencies without changing how things are done in the profession.
Reed identifies a few areas where she sees a need for improvement, for example, document drafting. She would like to see something like a “Stack Overflow for law” that could better standardize the process of putting legal documents together. And she would really like to see an end to the “soul destroying” effects of the billable hour. But she doesn’t see this happening any time soon because “big law firms are pretty good at nipping this in the bud.”
She sees the commodity side of legal services, where many new innovations are being introduced, as a “small part of the market.” Reed agrees there is a “huge untapped market” of people who need and would benefit from access to specialized legal services. And she points to evidence of this in the many legal clinics associated with law schools. But she also notes that the process of solving legal issues are often complex and can’t be easily handled with a simple form pulled down from the Internet.
This first panel at the Disruptive Innovation in the Market for Legal Services conference provided valuable context for the potentially disruptive innovations that continue to emerge in the legal profession.
It’s easy to think that, at least in your office, a major claim couldn’t possibly happen. But LAWPRO’s experience shows that errors, innocent oversights and gaffes in any type of practice can lead to big problems. And if you or your firm don’t have adequate insurance in place to address the claim, you could be facing personal exposure. The number of LAWPRO claims with values that exceed $100,000 has risen sharply in recent years and often the mistakes that lead to such claims result from very simple errors. Below are scenarios drawn from reported cases of alleged lawyer-negligence that show how easily large claims can develop.
Conveyancing: Condominium conundrum
You act for the purchaser of a residential condominium unit. Unbeknownst to your client, and despite the way the condo appears at the time of sale, not all parts of the unit being used as living space were actually transferred to your client. The condominium corporation tells your client that parts of her unit are common elements and she has to stop occupying those sections. She sues you for failing to identify this prior to the purchase. In fact, she winds up suing a number of people associated with this transaction. What could this cost you? In a case very similar to this, the lawyer and his firm were held to be responsible for $1.15 million.The legal costs were particularly substantial due to the number of parties involved and the complicated nature of the litigation.
Corporate/commercial: All you want to do is help the transaction close
You’re acting for someone purchasing a company. The vendor is unrepresented and won’t get his own lawyer. You offer to prepare all of the necessary legal documents for the transfer for both parties, but you don’t think it’s necessary to confirm in writing that you won’t be doing any additional filings for the other side, assuming it will be clear that person is not your client. The vendor doesn’t file the documentation that confirms he is no longer a director of the company. A subsequent sale of securities by the business results in him being held liable by Canada Revenue for taxes owed by the company, and he looks to you to pay it. By making the offer to do all the legal work involved in the transaction, the court held the lawyer in this case had a duty of care to the vendor that was breached. The judgment against the lawyer was just under $400,000.
Family law: When meeting client’s immediate needs conflicts with long-term goals
You act for the wife in a matrimonial dispute. The couple have done pretty well for themselves over the course of their marriage. You determine the husband could be a potential flight risk and originally intend to seek a preservation order. However, the wife could use financial help immediately,so instead you negotiate a deal to have the husband transfer assets to the wife which represent a lot, but not necessarily all, of the estimated equalization payment. When the husband suddenly disappears and the wife can’t recover what’s outstanding under the equalization payment, she sues you for $6,000,000. Thankfully, at trial the court found the lawyer’s actions did not cause the wife’s loss.
Franchises: When lawyers act as trustees
Your client acquires the exclusive right to set up franchise locations for a nation-wide restaurant chain in a specific province. You act for your client in setting up his business structure and the franchise documents. After he starts signing up investors for the franchises, it becomes apparent that there isn’t as much interest as he expected. Because it’s clear that not all units will be sold as originally set out in the documents, an amendment is made to the agreements that states your client will deliver the investors’ funds to your firm after closing and you will hold it in trust until all units are sold. Your client receives the money from the investors, but never remits it to you.
You later discover your client has used the funds to pay down his own business debts. Your client’s business fails and the parties who invested in the franchises can’t recover against him because he and his business are insolvent. The investors sue you. The court found that the lawyer breached his fiduciary duty to the non-client investors by not holding the funds in trust as originally held out. The investors, who each invested $50,000, were entitled to seek recovery against the lawyer for the full amount lost.
Intellectual property: Diarizing disaster
Your client holds several patents. You are to arrange payment of the necessary fees to a patent office, but through an oversight, payment is not made in time and the patents lapse. More than $1 million in damages was awarded in a case like this.
Mortgages: When trying to save money on an up-to-date search winds up costing a lot
You act for the mortgagee and mortgagor of a commercial property that’s under construction. You register the mortgage on the subject property, but you skip the search to save money and end up missing a critical fact. It ends up the mortgage is unenforceable because a recent amalgamation of the borrower’s companies means that the neighbouring properties, that used to be owned by separate but related companies, have now become joined as one. The mortgage was in contravention of section 50(3) of the Planning Act, R.S.O. 1990, c. P-13, since the borrower owned abutting lands. The borrower subsequently goes bankrupt and the mortgagee is found to be an unsecured creditor. At trial more than $2 million in damages was awarded against the lawyer.
Personal injury: Obtaining consent
You commence an action following a motor vehicle accident on behalf of the injured party and a compensation fund. You act on this file for six years. In consultation with both the injured person and the fund’s lawyers, who both seem to give their approval, a settlement is reached that you think is fair. Later, a senior officer in the fund declares the settlement to be inadequate and says you didn’t have proper consent to settle. At trial, the court finds that while you had in fact received consent, it wasn’t informed consent, because you failed to properly investigate the adequacy of the settlement. The court found the total loss to be more than $800,000. In 1990 the judgment, upheld on appeal and before adding costs, was for more than $344,000 against the defendant law firm.
Wills and estates: Sometimes you think you’ve got all the information you need
Your client gives you very clear instructions on how he wants his estate to be distributed, including a gift of certain lands to his brother. You ask the client to provide a legal description of the land, and you prepare the will in accordance with his instructions. After your client’s death you realize that the land was owned by your client’s company, not your client directly, and the company passed to a different beneficiary. The court found that there was both a duty of care to the intended beneficiary and, in the circumstances, the lawyer should have done a title search. The damages awarded against the lawyer were just under $500,000
Each Monday we present brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random* from sixty recent Clawbie winners. In this way we hope to promote their work, with their permission, to as wide an audience as possible.
Continuing legal education, professional development, formation continue (for those of us in Quebec)…Whatever we call it, we still have to do it. Finding relevant, interesting courses that fit into our schedules can be challenging. Enter Grapple. This easy-to-use online CLE site delivers content directly to you, when you want it, where you want it, on whatever device you want to use. It fits in perfectly with our philosophy at Gimbal: Grapple provides a high-quality product in way that saves you time, effort, and money….
In Defence of the CRTC’s Super Bowl Advertising Ruling
Last week’s CRTC decision to ban simultaneous substitution from the Super Bowl broadcast starting in 2017 has generated mounting criticism in recent days. While analysts initially noted that the lost revenue for Bell Media would not be material (a prediction borne out by a quarterly conference call where the decision was not raised by anyone), anger over the decision has continued to grow….
Access to Justice in Canada
Family Justice 3.0: A partially automated, settlement-oriented, lawyer-facilitated approach
The family justice system as we know it is in crisis. I think we’ve reached consensus on this point, as the truckload of recent reports from the national Action Committee on Access to Justice in Civil and Family Matters, the Canadian Bar Association and a handful of law societies seems to suggest. Whatever disputes are left likely centre on the extent to which the system needs to be rebuilt, how it ought to be rebuilt and how the rebuild will be funded….
More than one quarter of general counsel today are grappling with data breaches and it turns out Canadian in-house lawyers are more willing than their peers around the world to report them. According to a recent Association of Corporate Counsel 2015 survey of chief legal officers, one in four CLOs reported experiencing a data breach within their organizations over the past two years….
The international information professional organization SLA (Special Libraries Association) is organizing a free talk on February 25 entitled Social Media in the Library: Discovering Best Practice: “The ways social media tools are selected and used in the library change regularly in an evolving digital and social climate. …
*Randomness here is created by Random.org and its list randomizing function.
Some firms have taken the approach that they no longer wish to spend money on exposure. They believe that through healthy partnerships, they will be able to increase revenues with current clients and through the referral process continue to grow their business. Is that possible, quite likely but are there possible problems, absolutely.
By exposure I’m referring to everything from advertising to sponsorship to community events. There are so many different ways to spend money and countless people hoping you will spend it with them but there is only so much that can go around. How do you decide how much, for what and for whom?
The right mix will depend on the strategic plan for your firm. If extensive expansion is in the cards, than spending more will make sense. Being recognized at industry events through sponsorship and participation are great ways to “get known.” Advertising and other forms of promotion certainly have value even if the ROI is difficult to measure.
If slow and steady makes more sense than spending needs would decrease but you will still need to be visible where you clients are. Contacts change firms all the time which provides great opportunities for firms to expand client bases through these good contacts. However, there is the possibility of losing the client when a contact leaves if no one else knows who you are and what you do.
Exposure is critical in ensuring that other people know who you are and how you can help them. The level of exposure is really up to you.
Here are excerpts from the post:
[…] Here at In Progress, we hope to contribute to collective efforts by hacking Supreme Court doctrine. The idea is to open up the law around prisons and make connections to help generate anti-mass incarceration constitutional arguments. What’s more, the goal is to crowdsource the connection-making process. To do this, I am experimenting with doctrinal map designs to facilitate non-specialist learning of complex doctrinal systems.
Last time, I charted out a series of Eighth Amendment doctrinal networks and found them large and unwieldy. It’s not realistic to expect anybody to read over 100 Supreme Court cases while mining for anti-mass-incarceration arguments. So this time, I want to narrow the focus. Below find the 2-degree citation network linking the Court’s 2011 prisoner overcrowding decision Brown v. Plata to 1958′s Trop v. Dulles, a seminal pronouncement about the Eighth Amendment’s meaning as a guarantee of human dignity in light of evolving standards of decency. […]
Note the new design feature of the map above: its interactivity. Click on the map and then click on any of the opinions. You’ll find yourself looking an HTML deck that (a) has a very quick summary of the case holding; and (b) contains links to open resources about the case provided by CourtListener, Cornell Legal Information Institute, Oyez, and the Supreme Court Database. Some of the decks also contain other potentially useful information — check out the Brown v. Plata deck as an example (make sure you tap your right arrow key!).
As the above map demonstrates, legal hacking is a collective activity. If the map helps at all, it is only because it leverages free resources provided by great organizations doing great work. The HTML Deck platform is an especially cool free resource created by Dave Zvenyach, the 2014 DC Legal Hacker of the Year. His example should inspire us all to tinker and build and seek creative solutions. […]
For the map and more details, please see the complete post.
Here is the introduction to the post:
Professor Chris Marsden explains what is behind the Openlaws.eu project and explores the current landscape of access to law in the UK.
The law is a slow-moving beast, as are most lawyers (members of this august Society obviously excepted). Yet with more non-professionals appearing before the courts, in an ever more litigious society, but with fewer resources to engage legal professionals, learning something of the law is more important than ever. In a Knowledge Society, citizens can now access information about their surgeon, their school, their university professor, their neighbours – but not the law, with few exceptions. This is untenable; governments worldwide, together with legal professionals and scholars, have in the past two decades made plans to move towards open access to law via the Internet. This article explores how far the English law has moved, and what remains to be done. It concludes by explaining the pan-European openlaws.eu project, which is releasing its beta version in a Salzburg code camp on 20-21 March (the hills may well be alive with the sound of legal hacking). […]
Today is National Flag Day, and the 50th anniversary of the official adoption of the current Canadian flag.
National Flag Day was first instituted in 1996 by Jean Chrétien. On Flag Day in 2007, Peggy Nash attempted unsuccessfully to make it a federal statutory holiday.
Although dealing with the flag itself, and not the celebration of the flag, Parliament passed the National Flag of Canada Act in 2012. The initial version of the Bill included criminal penalties for mistreating the flag, until opposition in the House resulted in amendments stating that Canadians should simply being “encouraged” to display it.
The origins of the current Canadian flag start abroad, and not in England or France as you might expect. In an Arab Spring of an earlier time, July 23, 1952, the monarchy of Egypt was overthrown.
King Farouk, the deposed monarch, seems to himself predicted these turn of events at the end of the Second World War,
The whole world is in revolt. Soon there will be only five Kings left–the King of England, the King of Spades, The King of Clubs, the King of Hearts, and the King of Diamonds.
One of the precipitating factors for the revolution was the presence of the British in the Suez. In 1951, the Wafd Party in Parliament, who had transitioned Egypt to a constitutional monarchy, cancelled the Anglo-Egyptian treaty of 1936. This treaty was initially signed by King Farouk while in power, and allowed British troops to remain in Egypt to protect their interests in the Suez Canal.
The British and the Egyptians were initially able to resolve their differences diplomatically. They negotiated a staged withdrawal of the British from the Suez, and the British would pull out of the Sudan.
This changed after a failed assassination of Egypt’s new leader, Gamal Abdel Nasser, in October 1954. The opposition to Nasser was based, in part, in his inability to counter British authority. Soon after, Nasser decided to nationalize the Suez Canal on July 36, 1956.
Nasser continued to operate the Canal effectively and promised to pay remuneration to the owners of the Canal Company. Because the Canal was operated under the Constantinople Convention of 1888, there was no recourse the British or French had under international law as long as the Canal continued to operate.
The nationalization of the canal led to the invasion of Egypt by not only Britain, but by France and Israel as well. When the canal first opened in 1869, it had been partly financed by the French. Israel’s interest was in the Straits of Tiran, which had been closed by Egypt since 1951 in contravention of United Nations Security Council Resolution 95.
The Suez Crisis was a time of high tensions, but of cooperation as well. Both America and the Soviets opposed the invasion, and worked jointly to encourage the invading forces to withdraw. The Soviets even threatened to bomb the British with nuclear weapons.
The British, in turn, seriously contemplated invading Kuwait and Qatar to take their oil if the Americans imposed sanctions against them. Former colonial powers often have a hard time shaking off bad habits.
But it was a Canadian named Lester B. Pearson, Secretary of External Affairs of Canada at the time, who created the first United Nations Emergency Force, which eventually intervened in the affair. Canada was able to play a pivotal role particularly because of its neutral relationships with all the parties involved. There was little Canadian involvement in the Suez, and Canada had actually refused British requests for military aid in the Middle East on two separate occasions prior to the crisis.
Person was awarded the Nobel Peace Prize in 1957 because of the Suez Crisis, would later become Prime Minister in 1963. He experiences with the Suez though flavoured his perception of Canadian identity. Canada was an enormous country with a tiny population. A country with a small army and low risk of being invaded, but of enormous influence and high repute around the world.
The Egyptians, though grateful for Canadian assistance, had prevented Canadians from flying the Canadian flag because it incorporated the British Union Jack. Canada could only be effective as a peacekeeping if it maintained an independent and neutral identity, including the symbolism used on our standard.
Support for a new flag was divided at home, in particular in English-speaking parts of the country that wanted to maintain strong symbolic ties to Britain. A special committee canvassed thousands of submissions, many of which maintained a strong religious components.
An internal memo on March 23, 1964 emphasized that the committee “must avoid the use of national or racial symbols that are of a divisive nature.” In particular, the Union Jack and the fleur-de-lis was to be avoided. Canada was more than just our English and French components, even in 1964.
The new flag ultimately received widespread support, but not uniformly. In protest, the conservative provincial governments of Ontario and Manitoba maintained the Red Ensign through its adoption into a new provincial flag, where it remains to this day.
“Symbols are a powerful thing. They have been known to bring out intense emotions in people,” said Senator Mahovlich on May 16, 2012. Emotions without any though though can be dangerous, and it’s important to reflect on what the flag means for us as Canadians.
Do we still maintain the political neutrality which would allow us to intervene and resolve the world’s greatest crises? Do we retain the respect and admiration of all countries, not just those which are powerful? Would the Canada of today be able to accomplish what we were capable of 50 years ago?
In many ways we have fallen short of those ideals set out by Pearson, the same Prime Minister who had the courage to create a new flag. For example, we have failed in recent years to secure a seat on the UN Security Council, a diplomatic snub which should shock Canadians, but help us realize how we have fallen short of our mark. In many other ways though, we have excelled beyond it.
Hon. Maurice Bourget, Speaker of the Senate, stated on February 15, 1965, when the flag was first raised on Parliament Hill,
The flag is the symbol of the nation’s unity, for it, beyond any doubt, represents all of the citizens of Canada without distinction of race, language, belief or opinion.
We have gone beyond mere symbolic unity, and enshrined equality under the law through our Charter. We have become a far more diverse country, with all of our races, languages, beliefs and opinions, and have actually become stronger because of it.
But we also have a long way to go still.
In an editorial in the Toronto Star, Premier Kathleen Wynne invoked the 50th anniversary of the Canadian flag to focus on some of Pearson’s other accomplishments, and to call for a pan-Canadian economic union. Pearson introduced a new minimum wage, a 40-hour work week, and 2 weeks vacation time. National medicare, the Canada and Quebec Pension Plans, and funding for post-secondary education soon followed. This social plan is what allowed Canada to become the country we are today.
Wynne called for an infrastructure investment from the Federal government to allow Canada to grow further. She also called for:
Cooperation, the type we eventually saw in putting our flag together, is what is needed to move Canada forward to even greater accomplishments.
At a Flag Day celebration today in Mississauga with Jean Chrétien and Justin Trudeau, hundreds of Canadians celebrated Flag Day. Trudeau stated,
Our maple leaf has become to mean so much to us. I just wish Mr. Pearson could see us now.