Be Careful What You Wish for – the Pitfalls of Electronic Legal Deposit

slaw - Fri, 04/15/2016 - 06:00

Legal deposit

‘We all start out with hope and end with experience’

I wrote in the past about our role as a legal deposit library, and the joys and frustrations this brings. Things have moved on a lot since then, and the changes that have come about have created a whole new range of issues for us to consider.

For a law library the downside of paper legal deposit was that not all publishers deposited as a matter of course; that parts of loose leaf services often were missed and unable to be claimed; and the law report and journal parts also did not arrive now and then. So parts of our collection were not as complete as one would expect. There was an added workload in checking publisher catalogues and trying to reconcile these with what should have been supplied but wasn’t.

These complaints may seem minor, but in a collection as large as ours, tracking a few errant issues every day or every week mounts up in terms of workload, and over the years gaps have grown. But the one great bonus of LD for a law library is that we do not have to pay for those titles, just the processing and housing of them.

The University library, who distributed the funding for collections, factored this in to our allocations, and so we actually have always had a very bare bones materials budget by comparison to any of our peers. So when we first heard about the transition to electronic legal deposit, we were quite enthusiastic, as we mistakenly believed it could possibly enhance the LD and allow us a campus wide alternative to the restriction of one book in one location. In a way it did provide that, but it not quite how we hoped…

ELD is born..

The UK legislation to introduce Electronic Legal Deposit (ELD) came into force in April 2013. Since then the British Library, in conjunction with the other Legal Deposit Libraries, manages the ELD programme, providing the IT resources and hosting the journal articles and books that have been deposited.

The procedure was established that book/journal deposited titles would be replaced by the electronic equivalent. Not all publishers were able to switch at once, and many did not want to. But through an agreed process, the LD libraries drew up lists of those publishers we agreed could be transferred, and those we had on ‘wait’ lists.

A shortcoming of the Legal Deposit scheme in the UK is that the scheme includes three public libraries (The British, and the National Libraries of Scotland and Wales) and three academic – the Bodleian (where LD started in the early 17th century), Cambridge and Trinity College Dublin.

Impacts of LD are very different; for example, in a public library, reducing space for book storage is vital; e-access thus provides a welcome alternative means of access. In national public libraries, users are accustomed to going to the library to access a resource, book or online, and to using the material in situ, as it can’t be borrowed. By contrast, academic libraries provide 24 hour online access to e-resources irrespective of where the user is located, as well as extensive borrowing of materials. This clash of purposes has played out badly as ELD has grown, because the single concurrent user access to these ELD resources is restricted to pcs based in the libraries of the LD libraries.

ELD also does not permit the making of copies or sharing the resource. This will be devastating in the long term for the Inter Library, or Document Delivery services, that libraries have shared for decades.

Explaining to our students that some electronic material is not available on their mobiles or laptops is one frustrating aspect of ELD for the academic libraries. But an even greater one is looming. So far, the major legal publishers have not joined the migration to ELD over paper. For the few that have, we have had to purchase a subscription to titles no longer sent in paper to ensure access which allows copying. This is an additional cost to our budget we never planned. And, in addition, if we want the electronic access, we have to purchase that on top of the ELD access, to ensure equity of concurrent access to all students wherever they are based.

Battles to come

We are still in the phase of being able to approve, defer or reject submissions from publishers to transfer to ELD. Until now the law libraries have successfully ensured large legal publishers stay on the reject list, but we are not sure how much longer this will last. So as an unrepentant believer in the need for a library of record to have paper as well as online versions of resources, I face the threat of a lack of funding in the future to purchase that which we previously received free of charge and by right.

The attraction for publishers is easy to see – they submit articles or books/book chapters to the British Library as files,. There is no printing, packing, postage anymore. It is seamless from their point of view. So of course they are keen to switch.

By last September we reached the figure of one million e-articles deposited with the Bodleian via ELD. When searching our catalogue, SOLO, the holdings statement for any ELD item displays this caveat: Online access is restricted: available via Bodleian Libraries reading room PCs only

(Search the Journal of Contemporary History to see an example).

One saving grace for law is that cases and journals are often held in huge databases, unsuited to the structure of ELD provision where Portico is used for publisher deposit. This may change with time, as e-books with their own DOI, etc, become more widespread even amongst legal publishers, but it will not be soon.

It was short-sighted of the government to accept that ELD should have identical restrictions to Legal Deposit books – ie, single user access, and at a restricted library pc that allows printing but not downloading. In an age of constant connectivity to anything anywhere, this approach to ELD seems a step backwards to many. The poor people who have to explain these constraints to bewildered users are the library staff, who also find the restrictions irksome.

I have not investigated how other countries are managing Electronic Legal Deposit, but there is a very good summary from 2014 by the International Publishers Association. Be aware, if you come to do any legal research at one of the LD libraries in the UK, that whilst we have a broader collection of e-resources than ever, where and how you use some of it is still constrained.

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My Twitter Digest for 04/13/2016

<CONTENT /> v.5 - Thu, 04/14/2016 - 14:30
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The ABA Wants to Know What You Think About Regulating Legal Tech

The Lawyerist - Thu, 04/14/2016 - 12:43

Two years ago, the American Bar Association created the Commission on the Future of Legal Services to examine, among other things, how legal technology can transform delivery of and access to legal services. Late last month, the Commission released its Issues Paper Concerning Unregulated LSP Entities.

The paper defines “unregulated LSP entities” broadly and in a fashion that implicates much of current legal technology.

First, we know that these unregulated LSP entities offer a range of services, including automated legal document assembly for consumers, law firms, and corporate counsel; expert systems that address legal issues through a series of branching questions and answers; electronic discovery; legal process outsourcing; legal process insourcing and design; legal project management and process improvement; knowledge management; online dispute resolution; data analytics; and many others.

The Commission’s concern about LSP entities arises out of the differing ways that lawyers are regulated versus the lack of regulation of most LSP entities.

While the paper doesn’t go so far as to state that LSP entities should be regulated exactly as lawyers are, it does state that state courts have an interest in regulating the delivery of legal services and may wish to consider “whether the creation of a regulatory structure for currently unregulated LSP entities is necessary to protect the public.”

The Commission has requested comments relating to:

(1) data and evidence about currently unregulated LSP entities, including the types of entities that currently exist, the extent to which any public protection issues have emerged as a result of the operation of those LSPs, and the extent to which any particular types of LSP entities should be subject to new regulatory structures; and (2) information concerning any efforts to regulate these LSP entities. The Commission also seeks input on whether state judicial authorities should be encouraged to regulate currently unregulated LSP entities and, if so, what form those regulations should take.

Comments are due to the Commission by April 28. 2016.

Featured image: “Hand writing” from Shutterstock.

The ABA Wants to Know What You Think About Regulating Legal Tech was originally published on Lawyerist.com.

Categories: Teknoids Blogs

Microsoft’s Visual Studio Code for Windows, OS X and Linux hits 1.0

<CONTENT /> v.5 - Thu, 04/14/2016 - 11:37

Visual Studio Code (VS Code), Microsoft’s cross-platform text editor for developers, hit version 1.0 today after about a year in beta. The company says more than 500,000 developers now actively use the application each month.

The launch of VS Code came as quite a surprise when the company first announced it at its Build developer conference last year. Microsoft, after all, had never offered a code editor for OS X and Linux before — and definitely not under the Visual Studio brand.

When Microsoft launched the application, it was still missing extensibility and the code for VS Code wasn’t open source yet, either. Since then, the company fixed both of these issues.

Source: Microsoft’s Visual Studio Code for Windows, OS X and Linux hits 1.0

And you can even get the source on Github. This is part of Microsoft’s push into the open source world as it courts a wider range of developers.

Categories: Teknoids Blogs

Thursday Thinkpiece: Mintah on Excluding the Indigent From the Public Sphere

slaw - Thu, 04/14/2016 - 08:00

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.

Excluding the Indigent from the Public Sphere

Amy Mintah
(2016) 2 Windsor Rev Legal Soc Issues — Digital Companion 26

Excerpt: Sections I-IV, VI-VII, XII
[Footnotes omitted. They can be found in the original via the link above]

I. INTRODUCTION

“We are witnessing increasing marginalization, the deepening of stereotypes and the exiling of the poor from our political community” with the enactment of the Safe Streets Act. The indigent are increasingly construed as dangerous and less deserving members of society, and the public and private spaces of these individuals have been shrinking as a result. In 1999, the Safe Streets Act came into force in the province of Ontario. British Columbia passed similar legislation in 2004. With the enactment of this type of legislation, one of the most impoverished groups in society has been increasingly punished, imprisoned, and excluded from the public sphere. The Safe Streets Act has been described as one of the more salient displays of the Ontario government’s neo-conservative agenda that effectively exiles the poor from the political and geographical landscape, exacerbating stereotypes, and increasing the marginalization of one of the most impoverished groups in our society. The legislation is akin to the nineteenth century vagrancy laws that were used to punish and imprison the poor. The Safe Streets Act targets one of the most vulnerable groups in society, exacerbating their disadvantaged position. The legislation also offends the basic tenets underlying the constitutional framework of the Canadian Charter of Rights and Freedoms, specifically sections 7, 12, and 15, and therefore should be struck down. Alternatively, amendments could remove the unconstitutional or problematic provisions.

II. OVERVIEW OF THE ONTARIO LEGISLATION

Ontario’s Safe Streets Act prohibits individuals from approaching a vehicle at an intersection to ask for money or to repeat a request for money after a person solicited does not respond or declines. The legislation also prohibits aggressive solicitation. The Safe Streets Act defines aggressive soliciting as threatening those solicited, obstructing the path of persons solicited, using abusive language, proceeding behind, alongside, or ahead of persons solicited, soliciting while intoxicated by alcohol or drugs, or continuing to solicit after the person has responded negatively to the solicitation.

The legislation also prohibits the solicitation of a captive audience, which includes those who are using, waiting to use, or departing from an automated teller machine, using or waiting to use a pay telephone or a public toilet facility, waiting at a taxi stand or a public transit stop, on a public transit vehicle, getting in or out of a vehicle, in a parking lot, or in a stopped, standing, or parked vehicle. The legislation states that every person who contravenes the Safe Streets Act is liable for a fine up to $500 for a first offence. For subsequent offences, that person can be liable for up to $1,000, or imprisonment for up to six months, or both. Therefore, for those who are dependant on panhandling for survival, there are only a few places left to engage in such activities.

III. PROBLEMS ASSOCIATED WITH THE SAFE STREETS ACT

The Safe Streets Act has significant problems. It targets one of the most disadvantaged groups in society, homeless and impoverished individuals many of whom have substance abuse problems and physical or mental disabilities. Furthermore, many of the people in this situation have no other options for employment and turn to panhandling to survive. It follows that due to the all-encompassing nature of the provisions, these individuals are severely limited in securing their livelihood.

With regard to the fines for contravening the legislation, it is unrealistic to expect a homeless person, whose income is solely derived from panhandling, to pay these exorbitant amounts. Also, the legislation does not address the underlying causes of aggressive panhandling, which is often poverty, mental and physical disabilities, and substance abuse problems. The Safe Streets Act is an attempt to remove impoverished and homeless groups from the social sphere without addressing the issues responsible for marginalizing these groups. It is no more than a temporary solution, which does not address the foundational issues. Therefore, the Safe Streets Act must be examined to determine whether it requires amending or whether the legislation is necessary at all.

IV. IS THE SAFE STREETS ACT CONSTITUTIONAL?

Aside from the aforementioned problems associated with the Safe Streets Act, there has been a great deal of discussion about the constitutionality of the legislation. The constitutionality of the Safe Streets Act was upheld by the Ontario Court of Appeal, and ultimately by the Supreme Court of Canada. However, in light of the decision handed down by the Supreme Court of Canada in R v Bedford, the constitutionality of the Safe Streets Act may be re-examined.

The Supreme Court of Canada is not forever bound by its past rulings and has the jurisdiction to revisit a decision. A lower court is not entitled to ignore binding precedent. However, this common law principle of stare decisis is subordinate to the Charter and therefore a court cannot be required to uphold an unconstitutional law. That being said, the threshold for readdressing a matter is not an easy one to reach, as it requires a new legal issue to be raised, a significant change in the circumstances, or the introduction of evidence that fundamentally shifts the parameters of the debate.

The court in Banks did not consider whether the legislation violates section 12 of the Charter, nor did the court consider gross disproportionality or arbitrariness in its decision. In addition, the court did not consider the constitutionality of proceeding with an ex parte trial, where the defendant is not present at trial due to mental health issues or lack of transportation, and imprisonment may flow from a conviction.

Although the court in R v Jenkins upheld the constitutionality of conducting an ex parte trial when there is a risk of incarceration, the circumstances were quite different than those in Banks. The defendant in Jenkins was not as vulnerable as the appellants in Banks. The facts provide no indication that he was homeless and therefore, would presumably have less difficulty in ascertaining his trial date. In contrast, homeless individuals who do not own a means of communication may have greater difficulty discovering their trial date. Therefore, given that the court in Banks failed to consider such pressing issues, the constitutionality of the Safe Streets Act should be revisited.

VI. SECTION 7 ANALYSIS

Although the Ontario Court of Appeal and the Supreme Court of Canada upheld the constitutionality of the Safe Streets Act, in light of the decision handed down by the Supreme Court in Bedford, the constitutionality of the Safe Streets Act may be re-examined. The question under section 7 of the Charter is whether anyone’s life, liberty, or security of the person has been denied by a law. As the offences under the Safe Streets Act are provincial offences, an accused may be convicted at an ex parte trial, depriving such individuals of their right to full answer and defence. Because a person convicted under the Act may receive a six-month jail sentence in an ex parte trial, an individual’s section 7 Charter rights are engaged. Incarcerating an individual without giving them the right to a full answer and defence is not only problematic, but it infringes upon the defendant’s liberty interests.

The impugned provisions also create an unsustainable life for the “poor who beg.” The Safe Streets Act severely restricts groups who engage in squeegeeing to raise money for their livelihoods. An individual who is unemployable due to a mental illness or an addiction and does not have social support will not have money for food, clothing, or shelter. Begging may be the only way that this person is able to pay for the necessaries of life. When legislation severely restricts a person’s freedom to sustain their life, this person will be left with two options: (1) to live without any income, and rely solely on shelters for food and housing; or (2) resort to other unlawful activities to earn income, such as selling drugs or stealing. Therefore, the legislation produces an unsafe environment for those who are unemployable, do not qualify for social assistance, and have no social support.

In order to engage section 7 of the Charter, there must be a sufficient causal connection between the impugned laws and the risk to those who engage in panhandling. As noted by the Supreme Court of Canada in Bedford, there are three possible standards for causation: (1) sufficient causal connection; (2) a general impact approach; and (3) active and foreseeable and direct causal connection. The court held that the sufficient causal connection standard should prevail because it is a flexible standard that considers the unique circumstances of each case. It follows that to engage section 7, there must be a sufficient causal connection between the impugned law and the prejudice suffered by the claimant. The standard does not require that the impugned law be the only or the dominant cause of the prejudice suffered by the claimant. It is satisfied by a reasonable inference, drawn on a balance of probabilities.

With respect to the Safe Streets Act, there is a sufficient causal connection between the impugned law and the prejudice suffered by the “poor who beg.” The legislation places excessive limits on this group’s ability to panhandle, which prevents them from engaging in their only means of livelihood, pushing them further into poverty. According to sociologist Bill O’Grady, squeegee work is one of the few types of activities available to homeless youth that provide a level of stability and subsistence. Prohibiting squeegee work encourages these individuals to engage in far riskier conduct for survival. Because the legislation prohibits this group from engaging in one of their only means of subsistence and encourages participation in other unlawful activities, there exists a sufficient causal connection between the legislation and the prejudice suffered by individuals who beg for a living.

Because it has been established that the impugned laws deprive the “poor who beg” of security of the person, the remaining step in the section 7 analysis is to determine whether this deprivation is in accordance with the principles of fundamental justice. The principles of fundamental justice lay out the minimum requirements that must be met by a law that negatively impacts a person’s life, liberty, or security of the person. The concept of principles of fundamental justice is not a right. Instead, it is a qualifier of the right not to be deprived of life, liberty, and security of the person, and its purpose is to set the parameters of that right.

The principles of fundamental justice are concerned with arbitrariness, overbreadth, and gross disproportionality. An arbitrary, overbroad, or grossly disproportionate effect on one person is sufficient to establish a breach of section 7. Gross disproportionality under section 7 of the Charter asks whether the law’s effects on life, liberty, or security of the person are so grossly disproportionate to the law’s purposes that they cannot rationally be supported. Gross disproportionality is not concerned with societal benefits that might flow from the law. Instead, it balances the negative effect on the individual with the purpose of the law. For example, the Supreme Court of Canada held that a bawdy house prohibition was unconstitutional because the law’s harmful impact was grossly disproportionate to its purpose.

The object of the Safe Streets Act is to address the issues of public safety and nuisance that may be associated with aggressive panhandling. The harmful impact of this legislation on the “poor who beg” is significant, as it exacerbates the group’s disadvantaged position in society. As discussed previously, breaching this legislation may result in a sentence of up to six months in prison. Also, these individuals may have to pay substantial fines that they cannot afford and will likely be pushed to engage in other unlawful activities in order to survive. Prohibiting certain activities arbitrarily identified as “aggressive soliciting” puts the indigent at risk by forcing participation in other unlawful activities to earn income. The harmful impact of the legislation on the “poor who beg” is grossly disproportionate to the purpose of the law. It follows that the impugned law negatively impacts the security of the “poor who beg” and engages section 7 of the Charter.

A section 7 analysis also demands an assessment of arbitrariness. Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual. There must be a rational connection between the object of the law that causes the section 7 deprivation and the limits imposed on life, liberty, or security of the person. Otherwise, the law will arbitrarily limit those rights. The object of the Safe Streets Act is to promote safety within a community. However, the effect of preventing an individual from engaging in their livelihood, which leads to unlawful activity in order to earn income, has no connection to the objective of encouraging safety. Therefore, the law is arbitrary.

VII. IS THE SECTION 7 VIOLATION JUSTIFIED UNDER SECTION 1 OF THE CHARTER?

Once it is established that a Charter right has been infringed, it must be determined whether the violation can be justified under section 1 of the Charter. To justify the violation, the law or government action must have a pressing and substantial objective. Then, it must be considered whether the law’s negative impact on an individual’s rights is proportionate to its pressing and substantial goal of furthering the public interest. In this analysis, the government bears the burden of demonstrating that a law that breaches an individual’s rights can be justified.

For the law’s negative impact to be proportionate to its objective, the law’s objective must be rationally connected to the limitation it is imposing on the Charter right. A rational connection demands that the law is a rational means for the legislature to pursue its objective. Also, the court must determine whether the legislature could have created a law that minimally impairs the right or infringes the right to a lesser extent. Finally, the court must weigh the negative impact of the impugned legislation on individual rights against the beneficial impact of the law in achieving its goal for the public good. The impact must be judged quantitatively as well as qualitatively.

The negative impact of the Safe Streets Act on the rights of individuals is not proportionate to the pressing and substantial goal of the law in furthering the public interest. The purpose of the legislation is to limit squeegeeing and aggressive forms of solicitation to promote street safety. The Attorney General stated that “our government believes that all people in Ontario have the right to drive on the roads, walk down the street or go to public places without being or feeling intimidated. They must be able to carry out their daily activities without fear.” Promoting safer streets is a pressing and substantial goal. Although the law is a rational means for the legislature to pursue its objective of promoting safer streets, the legislature could have created a law that infringes rights to a lesser degree. For example, prison could be removed as a penalty, fines could be lowered, and less stringent limits could be placed on those who engage in soliciting and panhandling as a means of survival.

The legislation’s negative impact on individual rights outweighs its potential beneficial impact. This negative impact includes prohibiting individuals from merely pursuing their sole means of livelihood, fining and imprisoning these individuals, encouraging participation in other unlawful conduct for subsistence, and excluding the indigent from the public sphere. The only potentially positive impact of the law may be more efficient circulation of traffic and less nuisance caused by “the poor who beg.” Weighing the negative effects of the law with the beneficial effects shows that the negative effects outweigh the positive. Therefore, the law’s violation of section 7 cannot be justified under section 1 of the Charter.

XII. IS THE SAFE STREETS ACT A DRACONIAN AND INEFFECTIVE LAW?

If the Safe Streets Act would survive Charter scrutiny, it is crucial to assess the effectiveness of the legislation. The assessment considers the following questions: (1) What social harms are we trying to remedy through the legislation? and (2) Is the legislation effectively addressing these harms? As previously outlined, the legislation seeks to remedy the social harm of the fear that aggressive panhandling may create. As articulated in Banks, people must be able to carry out their daily activities without fear. Although the immediate effects of the legislation may be desirable, the law does not offer a sustainable or permanent solution. Prohibiting aggressive panhandling does not address the underlying causal factors, such as poverty, desperation, mental illness, and addiction. Panhandlers, because of their impoverished and vulnerable state, are often not in the position to respond to tickets issued to them, do not have the means to pay the imposed fines, and are less likely to attend hearings where they may be sentenced to six months in prison.

There are already provisions in the Code that protect individuals from harm or harassment on the street. If an individual truly feels unsafe on the street because of threatening demands for money, this person would already have the power to report the conduct to the police under the Code. Because of this existing avenue of protection, it must be determined whether a separate piece of legislation is necessary. The Code, as opposed to the Safe Streets Act, also creates greater safeguards for individuals charged under this offence because an amicus curiae may be appointed when required. Therefore, there is an existing regime in place to address danger in public spaces.

The provision that defines aggressive soliciting must be examined more closely. Although most would likely agree that threatening or using abusive language while soliciting would fall under the category of aggressive soliciting, the inclusion of soliciting while intoxicated may be overly broad and discriminatory. This provision targets homeless populations that are plagued with substance abuse problems. Such individuals are effectively banned from soliciting. Not only is this provision targeting those who are already vulnerable and impoverished, it is an ineffective way to address the underlying causes of aggressive panhandling. Under the current legislation, those with substance abuse problems will be fined or imprisoned instead of being offered treatment. Therefore, in addition to being unconstitutional, the legislation is fraught with problems.

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7 Reasons You Might Get Audited

The Lawyerist - Thu, 04/14/2016 - 06:12

Most of us are getting ready to submit federal and state income tax returns before the deadline. (Note: For 2016, the deadline has been moved from the 15th to the 18th due to a series of well-placed holidays.) But what are the chances the IRS will audit your tax return?

Tax return audits are rare. According to the IRS Data Book 2015, only 0.8% of all individual tax returns are audited. Solo attorneys reporting business income and expenses using a Schedule C have a 2% chance of being audited. Those with S Corporations have a 0.4% chance of being audited. And due to budget cuts, the IRS has fewer resources and is less likely to audit every questionable tax return.

These low percentages might tempt you to be overly creative in reporting your income and expenses. But before you play the audit roulette, the IRS and state tax agencies flag certain tax returns for audit because of the likelihood of dishonesty. Here are some of the common reasons:

1. High Income

The IRS is interested in high-income taxpayers for two reasons:

  1. High-income earners have the money to pay the tax.
  2. High-income earners are typically more aggressive when it comes to tax planning.

If you are making over $100,000 per year, you should ditch over-the-counter tax software and invest in a quality tax professional to make sure you are doing everything correctly.

2. Suspicious Deductions “If you don’t understand the expense you are claiming, neither will an IRS auditor.”

Lawyers are service professionals selling their time and expertise. This means you should not claim deductions that do not apply to you, such as cost of goods sold or depletion. If you have a side business, the income and expenses from that business should be reported on a separate Schedule C. Also on the Schedule C, minimize reporting anything on the section titled “Other Expenses.”

Expenses such as Internet and cellular phone charges should be reported as utility expenses. Worst of all, do not write something ambiguous like “miscellaneous expenses.” If your current tax preparer does this, you should seriously consider working with someone else.

If you don’t understand the expense you are claiming, neither will an IRS auditor.

3. Higher Than Average Numbers

The IRS keeps statistical information on the expenses of various professions. If your expenses exceed a well-known range, then the IRS might send you a letter asking you to send proof of these expenses. Wolters Kluwer has published a list of the averages of certain itemized deductions claimed by taxpayers.

4. The Three Exes

No, I’m not referring to an explicit website or the Vin Diesel movies. I am talking about the three disgruntled exes in your life who know about your finances: an ex-spouse, an ex-employee, and an ex-business partner.

They have the means to report questionable behavior (or what they think is questionable) for the reward or revenge. Even if your numbers are correct, they may mislead or even lie to tax officials just to incite an audit and make your life miserable. If you think you will have one of these three people in your life in the future, make sure your office has strict internal controls in order to keep them away from sensitive documents. Also, if a spouse or a partner prepared the tax returns on your behalf, you should take them to an independent tax professional to make sure they were done correctly.

5. Using Round Numbers

If you input round numbers ($100, $1,000) for many of your expenses, it may give the IRS the impression you are guessing. Some expenses—such as office rent—tend to have round numbers. But avoid using round numbers for expenses like food, travel, and supplies where the cost is typically specific to the cent.

6. Using Abused Forms and Credits

Sometimes, we can’t have nice things like an audit-proof tax return even if we did everything right. Sole proprietors with a Schedule C and those claiming the earned income tax credit have a higher chance of being audited because they have been used by dishonest people to cheat the system.

7. Using a Dishonest Tax Preparer

Sometimes, you can be audited because your tax return preparer has been dishonest in the past. The IRS may audit all of the tax preparer’s clients if they see a pattern of abuse. So if your tax return preparer closes up shop unexpectedly, or if you hear about them being prosecuted for filing fraudulent tax returns, you may be vulnerable. So be careful when choosing a tax preparer. While most tax preparers encourage being aggressive when it comes to the grey areas of tax law, the reputable ones do not condone outright lying. So avoid using tax preparers who promise the biggest refund. Google them to check for unsatisfactory ratings.

Unfortunately, there is no full-proof way to prevent a tax audit. But unexpectedly preparing for and enduring an IRS audit is a major time suck and about as entertaining as watching paint dry. If you think you have one or more of the above problems, this does not mean you should amend your tax return or withhold legitimate expenses. It just means that you should be more diligent about preparing your tax return and have your receipts and a tax professional ready just in case.

Featured image: “Tax Concept with wooden block on stacked coins” from Shutterstock.

7 Reasons You Might Get Audited was originally published on Lawyerist.com.

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Revitalizing Environmental Governance in Canada

slaw - Thu, 04/14/2016 - 06:00

Massive shifts in Canadian environmental law occurred over the past four years, most notably through two omnibus budget bills in 2012 that repealed or amended most of Canada’s most significant environmental laws. The legal and practical impacts of federal deregulation, however, have had an important counterpoint in the dynamic revitalization process that another area of law has been undergoing in Canada today: the legal traditions of Indigenous peoples.

Stepping into the void of inaction or deregulation by other levels of government, in recent years First Nations have banned proposed heavy oil pipelines from their territories, denied consent to resource projects following their own in-depth review processes, put in place their own tribal park designations, and taken steps to safeguard the herring fishery. At the same time that Indigenous peoples are revitalizing and applying their own laws to contemporary environmental challenges on the ground and on the water, new legal and political space appears to be opening up to advance the goals of recognition and reconciliation between Indigenous peoples and broader Canadian society, including our respective legal orders.

In 2014 in Tsilhqot’in Nation v British Columbia, the Supreme Court of Canada confirmed that Aboriginal title includes “the right to decide how the land will be used” and “the right to pro-actively use and manage the land” and reaffirmed the importance of Indigenous laws and land tenure systems as a source of Aboriginal title. The exercise of Indigenous law can also be linked to other Aboriginal and treaty rights, particularly governance rights, as the Supreme Court of Canada discusses in R. v. Pamajewon.

This “golden thread” of Indigenous law recognition was also present in the calls to action of the Truth and Reconciliation Commission which recommended, as a key foundation of a renewed nation-to-nation relationship between the Crown and Indigenous peoples, a commitment to:

Reconcile Aboriginal and Crown constitutional and legal orders to ensure that Aboriginal peoples are full partners in Confederation, including the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and other constructive agreements.

And in a recent mandate letter from the Prime Minister of Canada to the Minister of Indigenous and Northern Affairs, Minister Bennett was directed to work collaboratively with Indigenous peoples, provinces and territories “to implement recommendations of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples”, which requires Free, Prior and Informed Consent as the standard for Indigenous consultation on resource development in their territories. The Prime Minister also mandated a broad review (“with advice from the Minister of Justice, in full partnership and consultation with First Nations, Inuit, and the Métis Nation”) of “laws, policies, and operational practices” to ensure that Canada is acting “in accordance with its constitutional and international human rights obligations, including Aboriginal and Treaty rights.”

Seen in the context of other mandate letters to federal ministers prioritizing an immediate review of Canada’s environmental assessment processes, restoring lost protections, and incorporating modern safeguards to the federal Fisheries Act, and modernizing the National Energy Board, it would seem that the federal commitment to deepening recognition and application of Indigenous law has the potential to have a transformative effect on environmental governance in Canada in the years to come.

Categories: Teknoids Blogs

Infanticide: Should It Remain a Criminal Offence?

slaw - Wed, 04/13/2016 - 22:21

Infanticide as a criminal offence sprang about centuries ago, dating back to the 1600s. It was a crime that punished women, particularly poor women who sought to escape the oppressive stigma of having a child out of wedlock.

However, by the turn of the 20th century, courts were often unwilling to convict women that murdered their babies. In response, England enacted the Infanticide Act.

In R. v. Borowiec, 2016 SCC 11, Justice Cromwell writes at paragraph 27:

The adoption of the Infanticide Act, 1922 was intended to remedy the fact that judges and juries were reticent to convict a mother who killed her newborn of murder since she necessarily faced the death penalty… It was thought to be a crime mostly committed by “illegitimate mothers” trying to hide their shame, a motive which the general opinion thought lessened the heinousness of the crime. Further, it was acknowledged that women who committed infanticide often faced difficult economic circumstances, which led to the commission of the crime…

Under the Criminal Code of Canada, “A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed.”

 

 

 

Categories: Teknoids Blogs

My Twitter Digest for 04/12/2016

<CONTENT /> v.5 - Wed, 04/13/2016 - 14:30
Categories: Teknoids Blogs

Thought Exercise: Build a Chat Bot for Facebook Messenger

The Lawyerist - Wed, 04/13/2016 - 13:36

Yesterday Facebook announced its new Messenger Platform, including Bots for Messenger. Basically this makes it easier to built an intelligent-seeming algorithm—a chat bot—that can interact with anyone who contacts it on Facebook Messenger.

So let’s do a thought exercise. Let’s say people wanted to use Facebook Messenger to communicate with you about legal matters. What sort of bot could you build to help them?

Here are a few ideas off the top of my head to get you started:

  • Appointment scheduling (maybe including accepting payments for paid consultations).
  • Intake triage (i.e., identifying the people you might be able to help and referring the ones you can’t to other resources).
  • Document assembly for basic documents (like Shake, but more interactive).
  • Intake automation (i.e., collecting the basic information you need to evaluate claims).
  • Look up cases on CaseText or federal law on LII.

Should you built a bot? It’s probably a matter of days before some lawyer will, but that doesn’t mean it’s a good idea. But if you can automate a process through a bot, you can probably automate it through your website or well enough to outsource it, or just make your own procedures more efficient, which is why this might be a valuable thought exercise.

Just try not to build a neo-Nazi bot like Microsoft did.

Featured image: “Retro styled robotic toy with square head” from Shutterstock.

Thought Exercise: Build a Chat Bot for Facebook Messenger was originally published on Lawyerist.com.

Categories: Teknoids Blogs

These Apps Shame You if You Spend Too Much Time Glued to Your Screens

The Lawyerist - Wed, 04/13/2016 - 09:41

You already know that you are spending way too much time checking your email across various devices. Are you the person that, after glancing at your email, goes on to spend another hour just fiddling around on whatever device is at hand? Perhaps you are a candidate for these apps that will make you feel mortified about how much time you’re spending in the digital world.

Aware (Mac OS only) lives in your menubar and tells you how long you have been using the computer by detecting that you are moving your mouse or using your keyboard. It will reset itself after a short period of inactivity. It will not nag you to stop using the computer. Presumably you will do that yourself after you see that you have been on your Mac without a break for four hours or so.

Glued is an iOS app that uses a combination of shaming and gamification to get you to put down your phone. You link up with friends and family and compete to use your phone the least, basically. The flaw in this ointment is that you have to actually pick up your phone and open Glued to note that you are about to stop using your phone, and any true phone addict knows that once you pick up the phone to do that, you are done for.

Freedom, which works on Windows, Mac, and iDevices (with an Android app in the works) lets you set up a list of specific websites and apps to block access to so you can use your tech in a more productive way. You can also block the entirety of the internet (if you can get your brain around such an idea.) You set a fixed time you would like to be deprived of your connection to the digital world, and the app knocks you out of being able to access it.

Cold Turkey (Windows only, with a Mac app on the way) is similar to Freedom, but makes it much much harder to get around the block once you start a session. Apparently even attempting to uninstall the app to trick it into shortening the duration of your self-blocking will not work. Consider Cold Turkey the nuclear option, basically.

If using your phone at dinner, when you really should be socializing, is the problem, perhaps you need to take some really drastic steps. IKEA Taiwan built a table where the hot pot is powered by your smartphones. If you start using your phone, you stop powering the hot pot and food gets cold and everyone at the table hates you.

Featured image: “ My design of mobile.” from Shutterstock.

These Apps Shame You if You Spend Too Much Time Glued to Your Screens was originally published on Lawyerist.com.

Categories: Teknoids Blogs

More Than Just Rhetorical Questions

slaw - Wed, 04/13/2016 - 08:29

I am a professional working woman. My mother was, until her retirement, a professional working woman. My daughter will, I expect, be a professional working woman when she completes her education.

Issues related to the (in)equality of working women therefore are of particular significance to me.

Yesterday was Equal Pay Day in the U.S. This is a day that marks the point in time each year when women in the workforce will have earned enough to catch up to the earnings of men in the previous year. Did you get that?

In the U.S., women need to work for more than one year (in this case, 1 year, 3 months and 12 days) to earn the equivalent of what men earn in one year. Lest you are comforted thinking this is only an American problem, know that The Globe Mail reported that in Ontario, Equal Pay Day is going to be marked this year on April 19.

Why does Equal Pay Day even need to exist?

Kate McInturff of Canadian Centre for Policy Alternatives tweeted a chart showing the relative earnings of women to men in each Canadian jurisdiction. In Manitoba, the statistics indicate women’s full-time, full year median earnings are 76% of mens. That number reminds me of the Canadian dollar. Effectively, the results is the same as if women in Manitoba were being paid in Canadian dollars while men are earning in U.S. dollars. That hardly seems fair.

There’s a provincial election campaign underway in Manitoba right now. This isn’t an issue any of the parties are talking about.

Why isn’t everyone talking about the gender gap in wages?

Meanwhile, last week, I read a post on Above The Law, Americans Rank Law Firms Dead Last In Commitment To Diversity and was more than a little saddened to read that “…among 11 major industries — law firms are perceived to have the lowest commitment to diversity when it comes to hiring and retention.” Researcher Dan McGinn commented on the results saying:

“The public simply doesn’t believe that law firms care much about diversity. Our experience is that people are pretty savvy. They see government, higher education, and the entertainment and hospitality industry as more receptive to hiring a diverse workforce.”

Of course this was a survey that reflects only public perception. The reality must be better, right? Not so. The post goes on to reference other ATL posts that illustrate the legal profession’s problem with diversity. The situation isn’t so much different in Canada, despite the rhetoric as confirmed by these reports from British Columbia and Ontario.

Why doesn’t the legal profession lead the pack in the area of diversity and inclusion?

I admit to self-interest in this regard. I want to earn in 365 days what my male counterparts earn in the same time. I want to be paid in 100-cent dollars for my work. I want to work in a diverse workplace that is representative not only in terms of gender, but also in terms of race and ethnicity. I want all these things for my daughter too.

Is that really too much to ask?

Categories: Teknoids Blogs

Why Lawyers Struggle with Accounting Software

The Lawyerist - Wed, 04/13/2016 - 06:12

Let’s face it, most accounting software wasn’t made with advance fees, trust accounts, and eat what you kill compensation structures in mind. QuickBooks and Xero are good small-business accounting software, but they can feel clunky for a law practice.

If you aren’t using practice management software with a full-on accounting and billing component, here is what you might be missing.

Chart of Accounts

Law firms need some extra accounts on the chart of accounts, which might include:

Assets Advanced Client Costs Liabilities Client Trust Funds

  • Client 1 Trust Funds
  • Client 2 Trust Funds
  • Etc.
Income/Revenue Recovered Client Costs
Fee Income
Discounts Expenses Reimbursable Client Costs
Non-Reimbursable Client Costs
Unrecovered Client Costs

It’s not just the accounts, of course. You have to use them properly in order to meet your reporting requirements and prevent mistakes.

Preventing Mistakes

You’ve got soft costs, hard costs, advances, trust funds … and mixing them up can cause problems.

Trust accounting, of course, is one of the easiest places to get into trouble, especially when you are doing it manually in general-purpose accounting software. It is easy to accidentally post an advance to Fee Income instead of your client’s trust funds liability account.

Properly structuring transactions like post-settlement accounting for a contingent-fee matter or overpaying an invoice with a mix of fee income, costs, and discounts, can induce headaches. And if you do it wrong, you may lose out on income or goof up your books and cause problems come tax time.

Trust Accounting

If you use advance-fee retainers and hold client funds in trust, you must comply with your reporting requirements. Which seems like a no-brainer except that trust accounting is one of the leading sources of ethical sanctions. Since your clients’ funds do not belong to you, a mistake when recording a transaction (like posting an advance to your Fee Income account) is conversion. Those reports help uncover bookkeeping errors that could land you in ethical hot water, which makes them worth doing properly.

Generating a trial balance in ordinary accounting software is clunky, but possible. Generating a three-way reconciliation report is all but impossible. In fact, the easiest way to do a three-way reconciliation if you use regular accounting software is probably on a separate spreadsheet.

Built-in trust accounting with support for lawyers’ reporting requirements is probably the biggest reason firms use accounting software specifically built for law firms instead of general-purpose accounting software.

Properly Allocating Revenue

When you record a partial invoice payment, the first things to get paid are liabilities and costs. Income should come last. Your accounting software should take care of this so you aren’t earning income when you still have costs you could be reimbursing. The only way to accomplish this in general-purpose accounting software is with manual journal entries whenever you get paid.

Tracking Practice-Area Profitability

While you can track all your revenue in a single Fee Income account, you should be able to tell at a glance whether your firm’s small-business practice is more profitable than your firm’s estate planning practice. Knowing where the money comes from can inform decisions about marketing, compensation, resource allocation, and guide your strategic planning.

To Deal or Not to Deal?

That is the question.

You can certainly make do with general-purpose accounting software like QuickBooks or Xero if you are scrupulous about errors, learn to do trust accounting and reporting properly, figure out enough double-entry bookkeeping to ensure you are handling payments properly, and build the reports you need to keep your firm healthy. Plus, it’s another monthly fee on top of your practice management software.

Really, it’s a personal preference, but CosmoLex is betting you don’t want to go to the trouble and expense, so it includes a full accounting solution; you don’t need separate software like QuickBooks or Xero.

Featured image: “Young Businesswoman Sleeping With Invoices On Desk In Office” from Shutterstock.

Why Lawyers Struggle with Accounting Software was originally published on Lawyerist.com.

Categories: Teknoids Blogs

Think Again – Improved Productivity Starts Here

slaw - Wed, 04/13/2016 - 06:00

Have you ever noticed how your thoughts can really trip you up?

There are all kinds of tricky thoughts that can get us into trouble. Here are five versions of one simple I’ll get around to it later thinking trap that has major implications for our productivity:

I need a dedicated block of time for this task.

There’s not enough time for it now.

I will find time for it when I am not so busy.

That’s too big a project to start right now, and it’s not due right away anyway.

I just don’t have the capacity to deal with that now.

Ultimately, the error here is in thinking that big projects need big chunks of time, period.

Yes, wouldn’t it be nice if all of a sudden a huge block of time with no clients and no deadlines opened up in your calendar suddenly. And we all know that rarely happens.

Here’s what it important to know. Big projects are best tackled, initially, with some small steps.

Here are two reasons why starting earlier and with just a little bit of time investment can make you more productive:

First, this approach will likely produce a better end product. Our brains need time to process information and cognate. When we begin work on a difficult project and then set it aside, our more powerful brain will continue to ponder it, silently, in the background.

Also, as our brain ponders in the background it is being exposed to a variety of other stimuli from our environment and this can help inspire new thoughts and promote creativity. The result is that when we return to the task after a break of some minutes, hours, or days, we are likely to return with fresh ideas and insights.

Second, the pace of legal practice is such that we are all likely to always be handling full plates of work. Leaving our big projects for the perfect moment is an exercise in futility and just means we will find ourselves in fire fighting mode – again – when the deadline approaches.

This productivity insight comes from Ron Friedman’s HBR Blog post 9 Productivity Tips from People Who Write About Productivity and tip number four from Adam Grant who says that leaving important tasks unfinished can make us far more productive. Grant is a Wharton professor, psychologist, and the author of Originals – How Non-conformists Move the World.

This strategy is about working in alignment with how our brains function. Waiting for the perfect moment to start is counterproductive. Allowing yourself to shift between big tasks helps you get more done, and in turn can produce better quality work.

I frequently employ this strategy with positive results. I always have a number of large projects sitting in my work cue. I now try and take an initial start on each of them well in advance of the deadline. What I find is that by getting started early, when it comes time for the big push I am already well on my way.

This month give Grant’s productivity strategy a try. Start big projects early with a few small steps. This will give your brain time to cognate in the background and can help to promote insight and creativity leading you to get more done and produce better quality work.

Categories: Teknoids Blogs

Wednesday: What’s Hot on CanLII

slaw - Wed, 04/13/2016 - 06:00

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

For this last week:

1. Mou v. MHPM Project Leaders, 2016 HRTO 327

[21] I also find the applicant’s miscarriage is a disability. I acknowledge that a miscarriage may be covered under the ground of sex or as an intersection of sex and disability. It also is not a common ailment, and it is certainly not transitory. It is clear from the applicant’s testimony that she continues to experience significant emotional distress from the miscarriage even today.

(Check for commentary on CanLII Connects)

2. J.S. v. M.M., 2016 ONSC 2179

35. The photographs and texts attached to the Applicant’s affidavit dated March 15, 2016 are struck from the record. They are to be removed from the court file immediately by court staff and returned to the Respondent’s solicitor. The Applicant shall not allow any other person (including the children) to view these materials. He shall not disseminate any graphics or images from the cell phone to any person other than legal counsel. This includes a prohibition against posting any of these materials on line. The Applicant shall deposit the cell phone with his lawyer pending further order.

(Check for commentary on CanLII Connects)

3. Fontaine v. Canada (Attorney General), 2016 ONCA 241

[199] Canada, the TRC and the NCTR challenge the overall reasonableness of the Supervising Judge’s order to destroy the IAP Documents. They say that the IAP Documents are needed to preserve the historical record of residential schools. These parties point to references to federal legislation in the IRSSA and the Guide and to the statement in the IRSSA that all parties other than Canada had to destroy the IAP applications immediately upon completion of a claim. They say these references support their submission that the IAP Documents were meant to be archived by the government. Canada also argues the IAP Documents serve as proof of the resolution of claims and are needed to prevent double recovery by claimants.

(Check for commentary on CanLII Connects)

The most-consulted French-language decision was Dunsmuir c. Nouveau-Brunswick, [2008] 1 RCS 190, 2008 CSC 9

1. Une fois de plus, la Cour est appelée à se pencher sur l’épineuse question de la démarche qu’il convient d’adopter pour le contrôle judiciaire des décisions des tribunaux administratifs. Au Canada, l’évolution récente du contrôle judiciaire a été marquée par une déférence variable, l’application de critères déroutants et la qualification nouvelle de vieux problèmes, sans qu’une solution n’offre de véritables repères aux parties, à leurs avocats, aux décideurs administratifs ou aux cours de justice saisies de demandes de contrôle judiciaire. Le temps est venu de réévaluer la question.

(Check for commentary on CanLII Connects)

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

Categories: Teknoids Blogs

My Twitter Digest for 04/11/2016

<CONTENT /> v.5 - Tue, 04/12/2016 - 14:30
Categories: Teknoids Blogs

More Than Just Rhetorical Questions

slaw - Tue, 04/12/2016 - 14:28

I am a professional working woman. My mother was, until her retirement, a professional working woman. My daughter will, I expect, be a professional working woman when she completes her education.

Issues related to the (in)equality of working women therefore are of particular significance to me.

Yesterday was Equal Pay Day in the U.S. This is a day that marks the point in time each year when women in the workforce will have earned enough to catch up to the earnings of men in the previous year. Did you get that?

In the U.S., women need to work for more than one year (in this case, 1 year, 3 months and 12 days) to earn the equivalent of what men earn in one year. Lest you are comforted thinking this is only an American problem, know that The Globe Mail reported that in Ontario, Equal Pay Day is going to be marked this year on April 19.

Why does Equal Pay Day even need to exist?

Kate McInturff of Canadian Centre for Policy Alternatives tweeted a chart showing the relative earnings of women to men in each Canadian jurisdiction. In Manitoba, the statistics indicate women’s full-time, full year median earnings are 76% of mens. That number reminds me of the Canadian dollar. Effectively, the results is the same as if women in Manitoba were being paid in Canadian dollars while men are earning in U.S. dollars. That hardly seems fair.

There’s a provincial election campaign underway in Manitoba right now. This isn’t an issue any of the parties are talking about.

Why isn’t everyone talking about wage gender gap?

Meanwhile, last week, I read a post on Above The Law, Americans Rank Law Firms Dead Last In Commitment To Diversity and was more than a little saddened to read that “…among 11 major industries — law firms are perceived to have the lowest commitment to diversity when it comes to hiring and retention.” Researcher Dan McGinn commented on the results saying:

“The public simply doesn’t believe that law firms care much about diversity. Our experience is that people are pretty savvy. They see government, higher education, and the entertainment and hospitality industry as more receptive to hiring a diverse workforce.”

Of course this was a survey that reflects only public perception. The reality must be better, right? Not so. The post goes on to reference other ATL posts that illustrate the legal profession’s problem with diversity. The situation isn’t so much different in Canada, despite the rhetoric as these reports from British Columbia and Ontario confirm.

Why doesn’t the legal profession lead the pack in the area of diversity and inclusion?

I admit to self-interest in this regard. I want to earn in 365 days what my male counterparts earn in the same time. I want to be paid in 100-cent dollars for my work. I want to work in a diverse workplace that is representative not only in terms of gender, but also in terms of race and ethnicity. I want all these things for my daughter too.

Is that really too much to ask?

Categories: Teknoids Blogs