RSS FeedConflict of Interests Taskforce Reports
The Canadian Bar Association (CBA) has adopted the recommendations of its Task Force on Conflicts of Interest. Background on the Task Force and their report can be found on the CBA website.
CBA President Bernard Amyot said,
Lawyers, law societies, judges and the Canadian public will benefit from the principled approach developed by the task force. The recommendations will contribute to the evolution of the conflicts regime to reflect changes in the practice of law.
Members of the Task Force, Scott Jolliffe, Simon Chester and Gordon Currie, can also be heard in a podcast interview moderated by Jordan Furlong.
Conflicts of interest have made headlines in Ontario recently, with some claiming that they are used as an aggressive tool to have opposing counsel removed from a case.
Tracey Tyler of The Star explains,
The payoff comes in putting an opponent to the expense and aggravation of fighting the claim and – if they lose – finding a new lawyer.
The Supreme Court of Canada weighed in on the issue this year in Strother v. 3464920 Canada Inc. Binnie J. stated for the majority,
34 When a lawyer is retained by a client, the scope of the retainer is governed by contract. It is for the parties to determine how many, or how few, services the lawyer is to perform, and other contractual terms of the engagement. The solicitor-client relationship thus created is, however, overlaid with certain fiduciary responsibilities, which are imposed as a matter of law. The Davis factum puts it well:
The source of the duty is not the retainer itself, but all the circumstances (including the retainer) creating a relationship of trust and confidence from which flow obligations of loyalty and transparency. [para. 95]
Not every breach of the contract of retainer is a breach of a fiduciary duty. On the other hand, fiduciary duties provide a framework within which the lawyer performs the work and may include obligations that go beyond what the parties expressly bargained for. The foundation of this branch of the law is the need to protect the integrity of the administration of justice: MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at pp. 1243 and 1265. “[I]t is of high public importance that public confidence in that integrity be maintained”: R. v. Neil, [2002] 3 S.C.R. 631, 2002 SCC 70, at para. 12.
35 Fiduciary responsibilities include the duty of loyalty, of which an element is the avoidance of conflicts of interest, as set out in the jurisprudence and reflected in the Rules of Practice of The Law Society of British Columbia. As the late Hon. Michel Proulx and David Layton state, “[t]he leitmotif of conflict of interest is the broader duty of loyalty”: Ethics and Canadian Criminal Law (2001), at p. 287.
The issue appears to be a particular problem in specialized areas of law such as intellectual property and Aboriginal law.
100 Tips and Resources to be a Happy, Successful Lawyer
Is it possible to be both happy and successful in law?
Laura Milligan of Job Profiles thinks so. They wrote in last night and brought an article to our attention that provides tips and other resources that can help lawyers in their careers.
They suggest that lawyers join associations. For us it would be the Canadian Bar Association, as well as the provincial organization where you live. There are also practice focused groups like the Ontario Trial Lawyers Association and the Canadian Defence Lawyers.
To keep abreast of changes in the field, they list a bunch of lawyer blogs. Of course the best way to do that is to write a blog yourself, which keeps you in the loop and adds your voice to the discussion.
Social media is also something they mention, citing Kevin O’Keefe’s article from earlier this year that says that Law Firms Should Learn to Love Social Media Sites.
Love is a strong word. I’ve got my hand it dozens of social media sites, but I only use a handful because the rest are too time consuming, redundant, and have limited scope. FriendFeed has become a very useful tool because it aggregates several social media sites for you.
The newest site I’m trying out is Martindale by Lexis-Nexis. Given it’s specific legal focus it might prove useful, but has limited functions to students, who can’t create public profiles or be listed in the search functions. Law students marketing themselves is still something new to the industry. Firms might be interested in getting listed on Lawyers.com’s new site, Canadian-Lawyers.
Continuing education is hardly a concern for law students. But I still attend a number of CE events to broaden my horizons, gain perspectives from practitioners rather than academics, and network with members of the bar.
Avoiding burnout and creating a work/life balance should start now, while we are in school. Unfortunately the most successful students are too often the ones with the least balance. And although it might be a calculated sacrifice at this point in their career, it’s not sustainable in the long-term.
Jobs, and the fear of not getting one, is probably the reason why law students burn themselves out. The number of positions out there should provide some assurances that there are positions for everyone. Last month we were contacted by Stephen Fine, who provides other options at www.AlternativeLawJob.com. We plan on doing an interview with him in the future to explore this further.
References, referrals, humour are also important to add to the mix, and Milligan provides a smattering of them. But they also provide resources for new lawyers and students, how to get out of debt, and how to fight discrimination.
Jordan Furlong has also written to us in the past, and pointed out resources for Canadian law students and lawyers in creating work/life balance.
But will all of this help make lawyers, as Hon. Patrick J. Schiltz said, “happy, healthy and ethical?”
You tell us.
Law is Cool – Podcast #10
Show Notes
25:29 Total Running Time
0:16 Thomas Wisdom and Omar Ha-Redeye introduce themselves, with interviews from David Aylward and Hon. Chris Bentley.
1:14 Omar discusses the 7 Year Law Degree from Jordan Furlong, while Thomas mentions the importance of learning on the job.
2:25 Thomas shares his new smoking habit that he picked up during law school.
4:50 Omar introduces David Aylward, founder and director of COMCARE Emergency Response Alliance, on how to transition out of a typical legal career into other sectors.
5:22 David Aylward describes his educational, legal and political career in Congress and the U.S. House of Representatives.
6:37 David Aylward relates how the discipline of the legal education and the focus on the meaning of words helped him outside the law and creating a non-profit promoting agency interoperability.
7:52 David Aylward explains how in responding to any emergency there is a need for information exchange and a system that allows voice, data and video sharing.
9:31 Public agencies don’t look at the private or commercial sector enough for communications capability and have a higher degree of cultural resistance to sharing, but technically still have similar challenges.
12:02 David Aylward provides career advise on how to psychologically prepare on transitioning into non-traditional legal careers where the essence of the work isn’t the law.
14:42 There are lots of opportunities in North America, and anyone who has a law degree has lots of choices.
15:56 Thomas describes his trip to Florence, Italy and the 10 year delays in the tort system there.
16:28 Omar introduces Min. Chis Bentley, the Attorney-General of Ontario.
17:25 The Attorney-General of Ontario relates his experience teaching at the University of Western Ontario faculty of law.
18:02 Min. Bentley explains the access to justice issue, and changes his office have made to the criminal justice system such as the Justice on Target program.
21:02 Min. Bentley says we have a good human rights system and shares groundbreaking initiatives they have undertaken starting June 30, 2008 which will strengthen human rights in Ontario.
22:22 Min. Bentley explains why human rights are so important to our society, which values optimism and opportunity without barriers and discrimination.
24:52 Omar signs off.
Seven Years of Law School. Seriously.
A few months ago I was asking for some career advice from Jordan Furlong, of the CBA‘s National Magazine.
My concerns over bait-and-switch tactics by law firms and the enormously high turnover in some had me thinking.
We compared law to other professional degrees, and the pros and cons of each. Jordan suggested that I look at law as an investment in a personal skills enhancement project,
He responded at that time by saying,
I think a better way to look at it might be to consider the first seven years in the law to be the admissions process: three in school, one in articling, three in post-articling (most often, in a large law firm). At the end of those seven years, you’ve accumulated at least a minimal set of knowledge, skills and networks, you’ve paid down a chunk of your investment debt, and you can actually go out and start your real career. Viewed in that light, the working conditions for new lawyers seem a little more palatable, because new lawyers don’t see the harrowing associate experience as the norm or the template for the rest of their careers; they see it as an extended work term, co-op placement, apprenticeship, whatever, that has no particular bearing on where they’ll go next. If we could ever establish that way of thinking in the profession, we’d have much calmer and happier new grads.
Our conversation grew into an article that he posted on his site.
It proved so popular that the Young Lawyer’s Edition of the Addendum published it this month.
Perhaps it’s slightly disheartening to think of even more years ahead of me. But at the same time it might bring greater satisfaction and purpose to the challenges ahead.
A Wise Man Once Said…
Last week I met with Toronto lawyer Garry Wise.
Garry is one of the few Canadian practitioners that has made a prominent impression in the legal blawgosphere. Garry’s blawg was one of the other recipients of the 2007 CLawBie Awards, for Best Practitioner Support Blog:
Garry Wise – Year-in and year-out, Garry is one committed law blogger. He offers his opinions on almost everything, and if you do a Google search for Toronto lawyer you’ll see how blogging benefits the online exposure of his practice. If you didn’t read his Starting a law firm post back in February, please do. Garry Wise consistently offers great vision to a lot of solos across the country.
He related how he created his first firm site back in 1999, and has seen enormous returns from his online interaction. His client intakes have skyrocketed, and he is well-known and respected in the legal community.
We had a wonderful discussion on various subjects, and found many areas of mutual interest and common ground. Garry was generous enough to state that I would be an asset to any firm, and that progressive firms interested in expanding their client base should be trying to recruit me. Garry, I will be using your name as a reference as promised.
But he also suggested that I consider going solo directly out of law school, because I already have background knowledge and an existing client base in my area of legal interest (health), and greater prominence and contacts than many practitioners in the field for several years.
I’m not sure that’s the route I want to take, but it’s no surprise that his post on Starting a Law Firm is one of his most widely read articles. Garry outlines the basic requirements and strategic planning to set up your own firm.
But the “cons” he states – longer hours and more stress than even Bay St., and cost consideration during the initial start up – are likely to dissuade some of the most charismatic and entrepreneurial young lawyers, who opt to lend their credibility to a larger firm instead. Burn-out and stress are other often cited complaints of sole practitioners.
Gary Lloyd Gottlieb, a sole practitioner in Toronto, says in To be or no to be a prisoner of Bay St.,
The best advice I can give to a new lawyer who wants to practice solo is not to do it right away. You will spend too much time reinventing the wheel and then needlessly spinning it. Specialize and learn the ropes from the best lawyer or firm you can get a job with. Develop the knowledge and the competence for private practice for which law school has not equipped you, and for which the newly revamped bar admission process will not adequately equip you either. Develop your sea legs before you set sail alone.
That being said, all is not grim for those who choose to become sole practitioners. There are resources now available that did not exist when I sallied forth on my own 35 years ago
This could explain why the average age of sole practitioners in Ontario is 51, with only 12% under 35, according to a Law Society of Upper Canada (LSUC) survey in 2005.
Yet as we’ve pointed out before, nearly half of Canadian lawyers are self-employed. Jordan Furlong recently provided further break-down of the types of legal practice in Canada, indicating that less that 10% of Canadian lawyers can be found in large firms.
Gottlieb provides tips for those who comprise the vast majority if Canadian lawyers,
You need an independent temperament, the ability to constantly adapt, and eternal optimism to survive as a sole practitioner. You should also not expect a pot of gold.
Above all, you must take to heart the wisdom expressed in the Ethics of the Fathers; in order to be happy, you must be satisfied with your lot.
Access to Justice and Diversity
Smaller firms play an essential role in providing greater access to justice to smaller communities, and often more reasonable billing to clients.
But a recent story in the Star related how rising student debt compells many new graduates to flock to large law firms to pay off student loans. As a result, many smaller communities are increasingly finding themselves without legal services. Some have responded by considering loan-forgiveness programs for new lawyers who move to small towns.
Other lawyers go solo as a result of the failings of big firms that fail create inclusive environments. A 2000 LSUC Equity and Aboriginal Issues Committee report stated,
A number of lawyers feel alienated by the size and types of practice of large firms, and choose to practice in small firms or as sole practitioners.
But the report continues, and indicates that small firms might actually be worse for diversity issues.
However, small firms and sole practitioners often do not have the resources and time to deal with equity and diversity issues, or to develop the appropriate expertise to do so effectively. There are also those who may believe that equity does not add value for law firms which already have strong reputations and clients. Further, members of communities may not be aware of the availability of legal services or may feel that their lawyer either does not understand them, treats them differently, harasses or discriminates against them or otherwise violates their rights.
It’s probably a misconception then that lawyers elect for small practice because they cannot find an inclusive environment in any large law firm.
But there are other reasons for going solo, including women who want greater flexibility in their practice to accommodate a family.
Availability of Mentoring
Gottlieb has elsewhere criticized other LSUC initiatives of a practice management review program as a “A War on Sole Practitioners.” But these accusations have been rebuffed by Gavin MacKenzie of Heenan Blaike, who says that such procedures would apply to number of years of practice, and not type of practice ,
Both law society discipline and LawPRO statistics show that the early years of private practice pose a risk for the development of practice difficulties. Beginning the practice management review program with a focus on members who have been called to the bar for the formative one to eight years and who are in private practice is a risk-based approach that is justified both by data and common sense.
MacKenzie claims that LSUC instead provides support to the independant practitioner,
One of the most important initiatives of this Convocation has been to help sole practitioners and small firm lawyers to survive and thrive. We struck a task force to recommend ways in which as a profession we can preserve and strengthen the practices of the 94 per cent of Ontario law firms that consist of five lawyers or fewer. These sole practitioners and small firms provide the vast majority of legal services to individuals in search of access to justice.
The LSUC report on sole practitioners highlights mentoring as one of the major areas of need. And this probably remains the best asset that large law firms have for young lawyers, beyond issues of compensation or diversity. Many of the more progressive firms increasingly have formalized mentoring programs.
Size versus Presence
Valerie Mutton covered the LSUC report in the Lawyers Weekly, and interviewed Diana Miles, the LSUC’s director of professional development and competence. She suggests that planning is the essential key to a small practice.
But Jordan Furlong says,
Really, in 20 years time, the whole notion of law firm sizes may very well seem quaint. It won’t be all that relevant how big your law firm is with the exception of the global giants, size really won’t matter, because the heavily niched, increasingly mobile and wired lawyers of the future won’t find enough advantages to a common office space and letterhead. It may not even take that long, if the changes we can already see rippling through the profession start multiplying faster than expected.
According to Mutton,
Getting your name known in the community and within the profession is essential to the development of a successful practice…
Miles also suggests that new lawyers should take a course in personal marketing, since new lawyers often feel awkward about basic self-promotion such as handing out business cards or introducing themselves to potential clients.
The basic denominator to all these practices, whether small or the 10% in large firms, is presence.
And arguably, it is early adopters such as Garry Wise that have led the way for Canadian lawyers.
Partners Without Borders
McCarthy Tétrault announced recently that they are the first firm to join Partners Without Borders with Avocats Sans Frontieres in Quebec.
The organization was founded in 1992 in Belgium, and founded the Quebec chapter in 2002.
The news release states,
By becoming the first major Canadian law firm to be granted the status of “Partner without Borders,” McCarthy Tétrault continues its long tradition of providing pro bono legal services and community outreach.
LawIsCool has previously mentioned McCarthy Tétrault as the 2006 winners of the Canadian Pro Bono Awards, and is pleased to see them continue their support of such initiatives.
Jordan Furlong says on Law21,
Any law firm worth its charter has always been active in its community, of course, but in this age of megafirms with global reach, we’re starting to see super-national firms display a truly remarkable degree of involvement in issues and organizations that transcend the usual local undertakings. Check out DLA Piper, whose New Perimeter project is an incredible piece of work: a worldwide pro bono initiative that has seen 13,000 lawyer hours contributed to, inter alia, drafting new judicial laws in Kosovo, restructuring a micro-lending project, developing a worldwide food bank system and creating a human rights center in southern Africa. This is work on the scale of the CBA’s sterling International Development Committee, but supported by a for-profit firm rather than a non-profit association.
LawIsCool interviewed Jordan previously on the CBA and its benefits to students.
