♫ So let your trumpets blow
Round the walls of Jericho
Let your mighty voices sound
Until the walls come tumbling down…♫

– Music, Lyrics and recorded by: John Fullbright

Back in December 2015 I wrote a column on Uber and the Practice of Law for my regular column PracticeTalk for the Canadian Bar Association.  At that time, Uber, Lyft and other ride-sharing services had not yet come to BC and there was a lot of talk about what Uber’s entrance into the market might mean for passengers, for Uber and other ride-sharing drivers, for taxi drivers and the taxi industry, for safety of such rides and the like. Well I thought we could take a step back and see the effect that Uber and Lyft and other such services have had and reflect on the lessons that disruption can have for the legal industry, particularly what lies in the public interest.

The original column is as follows:

What do Uber, the taxi-replacement service, and the practice of law have in common? This was recently posted by a friend in Facebook:

Transportation in the new digital economy; Vancouver is Uber-free, but I tried it in Sacramento. Download the app and fill in basic information (e.g. credit card) in advance. When ready, the app confirms pickup location, takes your destination address, estimates the fare and wait time for pickup, and (if you approve) calls a driver. Best feature: when you arrive, just step out of the vehicle and go; payment is automatically charged to your card. No fiddling with charge cards, signatures, etc. A very positive experience – I will definitely use the service again.

Uber is a disruptive technology/service that is changing the face of ground transportation in cities where it has taken hold. Does Uber hold any lessons for the practice of law? To start, let’s look at the commonalities of taxis and the practice of law. Each:

• Has a monopoly that excludes competitors.
• Calculates the fare at the end of the ride.
• Is highly regulated.
• Extols the virtues of their regulations as protecting the public’s interest.
• Claims that their exclusivity is necessary to ensure the proper operation of the market for their services.

What are the differences between taxis/the practice of law and Uber?

• Uber app estimates your fare in advance.
• Uber app shows the route you will be taking.
• Uber collects feedback from riders and uses this to ensure quality control.

Uber claims that they offer predictability, lower prices for a similar product, greater convenience, reliability and quality of service by focusing on the client experience.

What evidence is there in support of Uber’s arguments? Well, the Competition Bureau says ride-sharing services are good for consumers, calling them innovative and likely to create lower prices and better service (http://bit.ly/1Nj0Xcg).

What happens when Uber comes into a city?

• The condition of taxis suddenly improve.
• Uber itself begins to face lower-cost competitors.

Certainly there are many detractors and negative aspects of the Uber model. However, Uber is an example of the emerging platform business model, in which competitors can enter a marketplace for virtually zero marginal cost against entrenched competitors.

Can this happen to lawyers? Clients don’t necessarily want a lawyer; they want a solution to their legal problem. Does it matter to them if a lawyer or a non-lawyer provides the service?

I have often said that the hardest law to repeal is the law of economics. In this case, Uber and similar services have the law of economics on their side.

—

Investopedia, in a column entitled: “Uber Advantages and Disadvantages” by Mohamed S. Jalloh, a financial analyst at Broadridge and an Investopedia contributor, looked at what happened when a disruptive technology and business model was introduced into a service industry that had been, up to that time, granted a monopoly on providing bespoke ride services. Did the forecast negative impacts of introducing ride sharing materialize?

Mohamed lists the key takeaways:

• Ride-sharing services like Uber have disrupted the taxi and limo industry,
• Uber has become a prime example of the gig economy at work.
• Uber’s advantages include door-to-door convenience, safety, and reliable quality.
• Uber’s disadvantages include its surge pricing and the negative effects of replacing steady jobs with gig work.

There is no question that the disruption has had deep implications. Mohamed states:

Bright-yellow taxicabs once dominated the streets of Manhattan. By 2020, there were four times as many ride-sharing vehicles on the streets as taxis. Those vehicles were summoned by apps offered not only by Uber and Lyft but by Via, Juno, and Gett.

Riders have to register with a particular service and their credit cards lodged, resulting in the loss of autonomy for their actions. In this way, both problematic riders and drivers are weeded out of the system. Both drivers and passengers are encouraged to rank each other, resulting in low rated drivers driven out of the system and low rated passengers banned.

OK you say – there is a vast gulf between providing legal services and providing a ride in a car. I get it. But the big question is, what implications does a disruptive model such as Uber and Lyft have for the legal profession? Both taxi drivers and lawyers claim they require a monopoly over their services to ‘protect the public interest’. Did this argument stand up when looking at the Uber experience?

The answer is a mixed bag.  No question the availability of options for seeking transportation services expanded. However, the cost of said services were not necessarily reduced, given ‘surge pricing’ which allows Uber to increase fares at high-travel times. Passengers are provided certainty (they knew the cost of the ride before they step into the car), the cleanliness of the rides  were stated to have gone up and the speed of the service over a cab increased (since the credit card is on file, the passenger just has to step out of the vehicle at their destination – no fiddling with credit cards and / or cash). However, since Uber and Lyft in Vancouver were restricted in the areas in which they could operate, the taxi industry still retained its monopoly outside of these areas.

But in terms of the big question of whether maintaining a monopoly was necessary to protect the public interest, there is no question that the answer was resoundingly, no. The public interest was not mortally wounded when the taxi monopoly disappeared. The taxi industry, however, definitely took a hit. And we all know that the interests of the taxi industry do not necessarily align up with the public interest.

This has lessons for lawyers. Consider that if we do nothing, as lawyers we may let our mighty voices sound until the walls come tumbling down….

© 2022 David J. Bilinsky

♫I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I –
I took the one less traveled by
And that has made all the difference…♫

– Lyrics by Robert Frost, music by Randall Thompson

Law is presently at a cross-road. On one hand, I can see a brilliant legal future that resembles Tomorrowland at Disneyland – filled with sparkling new technologies such as AI, Blockchain and innovative legal search tools that help lawyers meet and exceed client’s needs. On the other hand, the future could be a place where lawyers have been largely marginalized, the right to representation is bypassed in the name of expedience, the rule of law is undermined by politicians and the justice system ridiculed due to its cost and failure to render justice in any meaningful way to the majority of the public.

The new technological tools, while welcome and exciting, do little to change the justice system from a structural standpoint. They are, I fear, the equivalent of a new technological way to flog a dead horse. Without redoing the justice system to make it simple, speedy and affordable, it may simply collapse due to its own burdensome complexity, delay and cost, taking lawyers and their future, with it.

Which road shall we choose? The future is in our hands.

Justice under attack

The signs of a darker future are certainly apparent, and voices have been raised calling for greater attention. No less than Madam Justice Beverley McLachlin, the former Chief Justice of Canada has said: “The principles and institutions underpinning the rule of law are under increasing attack, even in Western democracies.” If the rule of law is undermined, then so is the future of justice and lawyers. As lawyers, we need to be seen to work with other stakeholders to find ways to strengthen the rule of law and be powerful and reasoned voices to advocate when it is under attack.

Structural issues

Law is complex. Along with the sheer number of laws, regulations, bylaws and such that apply to everyday life, there is the issue that each jurisdiction has its own laws, in some cases for a relatively small number of people. The BC Law Institute, for example, in its constitution, has as one of its goals to: “promote the clarification and simplification of the law and its adaptation to modern social needs.” Much more can be done to make laws consistent in application and simpler across all types of borders and within jurisdictions as well.

Emerging Issues

Technology, along with other factors, is causing changes in society at a rapid pace. The law has largely lagged behind in providing protections, resulting in corporations and other entities asserting greater and greater powers over individuals who largely are left without effective remedies. For example, The Office of the Privacy Commissioner of Canada recently stated: “Commissioner Daniel Therrien warns privacy concerns are reaching crisis levels and is calling on the federal government to take immediate action by giving his office new powers to more effectively hold organizations to account.”

“Unfortunately, progress from government has been slow to non-existent,” says Commissioner Therrien, whose annual report to Parliament was tabled. “Not only are the privacy rights of Canadians at stake, so too is our democracy and other fundamental values.”

Law loses its value if it fails to grapple with emerging legal issues and provide protections for those in society. This challenge will only continue to grow over time.

Regulatory issues

The rules and operation surrounding civil procedure, criminal justice, mediation and arbitration, administrative boards and tribunals as well as the regulatory environment of lawyers is reflective of the complex legal environment within which lawyers operate. Working with judges and others to adopt processes to regularize laws and streamline and simplify the operation and regulation of justice and regulatory systems are steps in the right direction.

Law Schools

What kind of challenges do law schools train law students to meet? According to the Harvard Law Review in an article entitled, Law Schools, Leadership, and Change by Susan Sturm: “There is a growing sense that law school is preparing people for a set of professional roles that do not match the demands or needs of a changing society. Research has documented an overemphasis on a narrow conception of technical mastery, and an underemphasis on the imperative to connect education with professional leadership for challenging times.”

Sturm continues later in the article: “Issues of justice, problem-solving ethics, change strategies, and inequality also tend to be marginalized within the mainstream curriculum, which encourages students to develop a radically skeptical attitude toward even the possibility of engaging in normative argument or achieving change.”

If we are going to implement the kind of changes that Sturm is advocating, we need to start by training lawyers to meet the challenges of the future head on. We need to emphasize how lawyers can be change agents in defining the future relationship of law to society.

Criminal Justice

According to the Canadian Department of Justice: “The cost of the criminal justice system is high. A Justice Canada report estimated that the total cost of Criminal Code offences to the justice system and society in 2008 was about $100 billion, including tangible costs of $31 billion. Roughly half of these tangible costs were criminal justice system costs. Police account for the majority of expenditures (57%), followed by corrections (32%), courts (5%), prosecutions (4%) and legal aid (3%).” Lawyers can be meaningful players in discussions on how to implement change to reduce the delay, cost and operation of the criminal justice system so that justice can be seen to be done.

Family Law

There is perhaps no area of the law that needs systemic change as family law. M. Jerry McHale, QC stated it well: “Last, but not least, closing the implementation gap – the discrepancy between what we know and what we actually do in family law – is also a matter of changing the underlying adversarial culture of the family justice system to make it less contentious and more truly collaborative. Academics, practitioners and critics have been writing about this change for nearly 40 years! Admittedly, it is no simple task – adversarial attitudes are deeply woven into the history, fabric and methods of the justice system. But the exorbitant fiscal and emotional costs of the long-dominant litigation model can no longer be supported. The system is unworkable, and it is losing credibility. As such, it falls squarely and immediately to the law schools and to the judges, lawyers, legislators, administrators, and service providers who make up the family justice system to come to grips with the problem of adversarial family law culture change for once and for all.”

(originally published in PracticeTalk in the Canadian Bar Association’s BarTalk magazine:

https://www.cbabc.org/BarTalk/Articles/2019/August/Columns/The-Future-of-Law)

© 2022 David J. Bilinsky

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( © 2012 Prov. of BC https://creativecommons.org/licenses/by-nc-nd/2.0/)

♫ I can have it all
Now I’m dancing for my life…♫

– Music and Lyrics by Giorgio Moroder, Lyrics by Keith Forsey and Irene Cara; performed by Cara.

When it comes to going beyond private practice, a few law graduates have taken things perhaps just a bit further than most.

Take Mark Ciavarella. He was a President Judge of the Luzerne County Court of Common Pleas in Pennsylvania. He pled guilty in 2009 to “federal charges of honest services fraud, wire fraud and tax evasion in connection with receiving $2.6 million in kickbacks from Robert Powell (himself an attorney) and Robert Mericle, the co-owner and builder respectively, of two private, for-profit juvenile facilities of PA Child Care” (per Wikipedia). How did he earn these kickbacks, you ask? By sentencing children to stays in juvenile detention for crimes such as “mocking a principal on Myspace, trespassing in a vacant building, and shoplifting DVDs from Walmart.”

Then there is Minnesota attorney Thomas P. Lowe. Now Thomas isn’t the first lawyer to have sex with his client (and almost certainly not the last). He distinguished himself by taking things one step further and billing his client for his time having sex, characterizing these activities as “drafting memos” and “meetings” (per Business Insider). This earned him a professional misconduct citation, among other things.

Stealing from clients is bad; stealing from orphaned children is in a class all its own. Yet that is what attorney John Milton Merritt did. He plead guilty to 12 counts of using forged court orders to defraud clients. Among those clients were four orphaned girls whose parents were killed in a 2002 car crash and a boy injured in a 2005 car accident. In total, Mr. Merritt stole just under $450,000 from the children and $1.7 million in total (per Huffpost).

However, not many lawyers make such an impact as Vladimir Ilyich Ulyanov, better known by his alias, Lenin. He played a leading role in the October Revolution, in which the Bolsheviks overthrew Russia and the Tsars (per Wikipedia).

He served as head of government of Soviet Russia from 1917 to 1924 and of the Soviet Union from 1922 to 1924. Under his administration, Russia and then the wider Soviet Union became a one-party communist state governed by the Russian Communist Party.

Genocide scholar Adam Jones claims that “there is very little in the record of human experience to match the violence unleashed between 1917, when the Bolsheviks took power, and 1953, when Joseph Stalin died and the Soviet Union moved to adopt a more restrained and largely non-murderous domestic policy” (per Wikipedia). Robert Conquest, in his book, estimates the communist leaders of the Soviet Union were responsible for no fewer than 15 million deaths.

On a different scale, take lawyer Brett Hartley of Florida who was disbarred by The Florida Supreme Court. What did he do? He used his lawyer trust account as a business operating account for an adult entertainment business in Jacksonville, Florida called Flash Dancers. He also abandoned his practice, misappropriated client funds, failed to pay back $255,000 from his father in law after two payments, and had a substance abuse problem.

This all goes to show that if you throw the ethics book out the window, you can seemingly have it all, provided you don’t mind — dancing for your life.

Resources to assist with personal, drug, alcohol and other issues

Since many lawyers who get into ethical troubles do so as a result of alcohol or drug dependence, mental health issues, stress, depression, parenting and elder care issues and other challenging life situations, there are a number of resources available to assist lawyers and in many cases, their staff and families deal with these issues before they become overwhelming. Here is an overview of some of the resources available in BC.  There will be similar programs available in other provinces and states – check with your bar association, practice management advisor or ethics counsel.

Lawyers Assistance Program (“LAP”) (lapbc.com) LAPBC is an independent organization of members of the BC legal community (lawyers, judges, families and support staff) for members of the legal community.

LAP provides peer support, resources and referral services to help people deal with personal problems — including alcohol and drug dependence, mental health issues, stress and anxiety, relationships issues, including familial issues, professional concerns, depression and other issues. They are available 24/7. Call 604-685-2171 or 1-888-685-2171 or email info@lapbc.com.

Mood Disorders Society of Canada (mdsc.ca)

Mental health resources.

Law Society of BC

LifeWorks Canada The Law Society funds LifeWorks Canada’s personal counselling and referral services. Services are confidential and available at no cost to individual BC lawyers, articled students and their immediate families. LifeWorks can “help with life’s questions, issues and concerns — handling stress, maintaining relationships, challenges at work, parenting and childcare, managing money, caring for an older relative or health issues.”

Contact LifeWorks 24/7:

• Calling the toll-free number: 1-888-307-0590 for a confidential in-person call.
• Log in to login.lifeworks.com to learn more about the services Lifeworks provides, including website materials and access to a confidential online chat or in-person call:
  • Username: lawsocietybc
  • Password: healthy
• Download the free app on Android or IOS — simply search for “Lifeworks.” Once downloaded, open the app, click on “log in” and enter your Username and Password: lawsocietybc/healthy

Maternity Leave Benefits Program The LSBC offers a maternity leave benefit loan program to assist self-employed women lawyers who do not have access to maternity and parental financial benefits other than government programs remain in practice. To be eligible for the loan, you have to meet all of the requirements listed here. The program provides a loan of $2,000 per month for four months to help with overhead costs during a maternity leave.

Equity Ombudsman Claire Marchant is the Equity Ombudsman at the LSBC. She can assist with resolving concerns about discrimination and discriminatory harassment. Lawyers, articled students, law students and support staff of legal employers are all free to contact the Equity Ombudsperson. The service is voluntary, confidential and free to participants. Contact Claire: equity@lsbc.org or call 604-605-5303.

Drug and Alcohol Resources

Watching a spouse, child or other family member deal with drug, alcohol or mental health issues can present you with one of the most challenging life situations you can ever face. There are many resources available to assist you in this journey.

HealthLinkBC lists many resources, including how to reach out for help for: suicide, mental health, kids help, alcohol and drug resources and other information. It also lists resources such as how to talk to teens, how to talk to adult children and what your health authority can offer by way of assistance. healthlinkbc.ca/substance-use/parenting-articles.

Alcohol and Drug Information Referral Service It’s free, confidential, and available 24/7. Call 1-800-663-1441 or 604-660-9382 in the Lower Mainland.

Gambling Support Line 1-888-795-6111

Depression and Mental Health Resources (cmha.bc.ca)

HeretoHelp.bc.ca lists a number of resources available to help deal with depression, mood disorders and more.

There are many other resources available in the province, some of which are specific to communities. For example, call or text 211 to access free information and referral to a full range of community, social, and government services, 24/7 in the Metro Vancouver, Fraser Valley, Squamish-Lillooet and Sunshine Coast Regional Districts.

(originally published in PracticeTalk and TechTips in the Canadian Bar Association’s BarTalk magazine:

https://www.cbabc.org/BarTalk/Articles/2020/April/Columns/Going-Where-Few-Have-Gone-Before

https://www.cbabc.org/BarTalk/Articles/2020/April/Columns/There-are-many-resources-available-to-assist-lawye)

© 2022 David J. Bilinsky

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♫ But there never seems to be enough time
To do the things you want to do,
once you find them… ♫

— Music, Lyrics and recorded by Jim Croce.

What is the one thing we all own in equal measure, every day? The answer is simply enough — Time. We all take our daily allotment and spend it on work, pleasure, things we have to do, things we want to do, things we wished we didn’t have to do, things that waste time, and more. How we use it can make us happy, it can make us sad, it can bring about positive change to the world, it can bring a smile to someone’s face, or sadness to another. Two things we can’t do with it is bank it or get more of it. Accordingly, let’s spend a little time to explore how to best manage our time.

The first step is to write down your goals. These are not just work and career goals but life goals as well. You may want to make partner or launch your own firm. You may wish to do public advocacy work or learn to play a musical instrument or write a play. You may wish to ski more often, run a marathon, or travel. The point is that goals unset are goals unmet. What does success mean to you? Rank your life’s goals, research what has to be done to achieve them and then develop a plan that will take you to your life’s goals.

Next, write out the tasks that will take you toward your life goals and those that others have set for you. Each task should take you closer to a goal.

Remember that tasks should be S.M.A.R.T.: Specific, Measurable, Attainable, Relevant, and Time Based.

• Specific: Goals should be tightly focused and clear so you can foresee the steps that need to be taken for goal achievement.
• Measurable: What gets measured gets done. Have milestones set that allow you to judge your progress toward goal achievement.
• Attainable: Do you have what you need to achieve your goal? Or do you have to gain experience, education, skills, or credentials to do this? Perhaps you need to set sub-goals to take you toward your big goal.
• Relevant: Do your tasks bring you closer to your life’s goals?
• Time Based: Set a deadline for each task to hold yourself accountable.

Now, sort out your tasks into four categories:

• Important and urgent: +I+U
• Important but not urgent: +I~U
• Urgent but not important: +U~I
• Not urgent and not important: ~U~I

Sorting your tasks starts the process of prioritization:

• +I+U: Do these tasks right away.
• +I~U: These are your long-term goals. Set aside time for these in your day!
• +U~I: Delegate these tasks if possible. If not, schedule them lower in priority.
• ~U~I: Set these aside to do later, if ever (typically time wasters).

Create a “To Do” list from your priorities and keep it on your desk. This allows you to keep your priorities in front of you at all times. Organize your desk and remove clutter — those are usually distractions.

Develop good time management skills and habits. Good time management skills can be learned and nurtured over time and will only increase your value to your firm, to your family, and of course, to yourself. They will allow you to find time to do the things you enjoy.

Set a time budget and allocate a set time to each task and then block off time in your daily calendar based on your tasks. Once a task time is up — evaluate what has to be done to complete the task, create a new To-Do, sort your To-Dos again, and start the next task.

Cut out all time-wasting activities. Reward yourself for task accomplishment with a small break and reward. Reinforce how good time management works for you and clears your To-Do list as you work through your day.

Remember that procrastination is the enemy of goal achievement. Procrastination can be a sign of a fear of success, a fear of failure, that you don’t deserve your life’s goal or find a task overwhelming. When the urge to procrastinate comes on, counter it by immediately working a bit on your goal and a task and experience the relief in having started. Break down a big task into smaller portions and conquer each in turn and watch your progress.

Plan to deal with obstacles and interruptions. If someone walks into your office and looks to be staying, grab your coffee cup and head off to the coffee machine. They can talk while you get a coffee and — you got them out of your office!

Resolve to stop multitasking. It may feel like you are accomplishing a lot, but that doesn’t stand up. According to bit.ly/bt0422pt-1:

“Studies now show that multitasking can actually damage the brain. As the brain can primarily focus on one thing at a time, keeping track of multiple things at once or accepting multiple streams of information can lead to decreased productivity and distraction from the task at hand.”

Consistently work on your Important but not Urgent: +I~U tasks. These are the ones that will change your life’s path as you desire it to be. Plan your tasks to gradually move yourself into the area(s) of practice in which you desire to be. Measure your progress to stay motivated!

Set a daily billable time goal and track your progress to it throughout your day. You owe it to your family, your firm, and not the least of all, to yourself to grow into being a more effective and responsible lawyer each and every day. Hold yourself accountable for your progress and reward yourself for achieving your daily billable time goal.

Track all your time — billable and non-billable. There are many reasons for doing this. By seeing where you are spending your time, you increase accountability to yourself and to others. Tracking all your time increases your focus on your +I+U tasks. It exposes your time wasters, time sinks, and traps. It prevents project creep, by keeping tasks within their allocated time budget. You enhance your personal bottom line, which in turn benefits yourself and your practice. Most importantly, it will gradually transform you into a better lawyer.

Prevent leaks in your time boat. There are many possible ways to leak billable time. The first is the failure to accurately capture time. Up to 40% of your billable time can be lost if not recorded contemporaneously with task completion. A second is to write off billable time at the time of billing. A third is to reduce an invoice to receive payment. A final one is to write off an entire bill as uncollectible. Plug the leaks in your financial boat by using your time to achieve effective client objectives. Remember client satisfaction ulti-mately drives collections.

Having an accurate billable and non-billable time record allows you to perform analytics on your time and finances. A “Key Statistics” report will show you the financial health of your practice at a glance with such indicators as: Effective Hourly Rate, Work In Progress, Billings, Billing Turnover, your Billing Realization, your Collection Realization Rate, and many more.

Accurate time records will also allow you to forecast your future cash flows and track them against your cash flow needs, providing you with feedback on your financial health and providing you with needed information for cash flow management.

Lastly, pass on your hard-earned knowledge. Teach younger lawyers your time management skills. Act as a time mentor and help grow the next generation of associates into lawyers and partners your firm will value.

Good time management skills can help us all make the most of this most precious of resources, and thereby find the time to do the things we want to do, once we find them.

(c) 2022 David J. Bilinsky

(originally published in PracticeTalk in the Canadian Bar Association’s BarTalk magazine: https://bit.ly/3qSFo04)