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  • July 25th, 2022

    attract talent

    Web Vectors by Vecteezy

    ♫ People say they wouldn’t change a thing, even if they could. Oh, but I would
    Oh…oh, I, I’d done a lot of things different… ♫

    — Music and lyrics by D. Dillon, B. Anderson, recorded by Kenny Chesney.

    There is a war going on and not just the one in Ukraine. COVID, law firm management’s back-to-the-office movement, and the resultant calls for greater work-life balance from associates who have now tasted the forbidden fruit of working-from-home, have all compounded the whole associate retention, recruiting, and compensation landscape.

    In the 2021 Above the Law Millennial Survey by Major, Lindsey & Africa, associates were asked what they would desire over increased salary. The results:

    • 29% more time off;
    • 25% flexible work schedule;
    • 26% reduction in billable hours; and
    • 8% more time for career, training, and development.

    This clearly runs headlong into management’s goals for an annual increasing billable hour requirement or at least holding them steady from year to year.

    Associates, tired of waiting for change, are voting with their feet. A Thomson Reuters survey indicates that associate turnover reached 23.2% in 2021 compared to 15% in 2020. Moreover, Thomson Reuters estimated that the turnover cost for an associate is 1.5-2 times annual salary. Based on a 3rd year associate salary of $200,000, the cost to the firm would be $300,000-$400,000 per associate.

    What is the usual grounds for competition between firms for associates? Greater associate compensation — which in turn translates into increasing hourly rates charged to clients with resultant — and expected — pushback.

    Is there a win-win in this situation? I believe so. The solution is to adopt procedures that tighten up the financial boat and allow for a greater percentage of fees worked to be collected, thereby reducing the sheer volume of work being performed.

    There are a number of policy changes that can increase the bottom line without causing lawyer burnout. One is to reduce the leaks in the billable hour boat. This starts at the client intake process. By vetting clients carefully and mandating written retainer letters with evergreen retainer and collection clauses on all new matters, the resultant account write-downs and write-offs can be reduced to a minimum. Increasing billing frequency keeps the client informed on the state and cost of the work to date. Having associates and partners review files frequently with clients cuts down on “scope creep” and resultant sticker shock. Time capture software can reduce unrecorded time spent on mobiles, evenings, and weekends.

    A simple policy of requiring daily time submission cuts down on lawyers reconstructing their daily time entries with resultant missed entries. A firm in Atlanta, GA paid their timekeepers $7/day if the time entries were in by 10 a.m. the next day. Their CFO stated: “You would be amazed at what lawyers will do for $7 a day.”

    Another technique is to reduce “lock-up” — the time between time worked and time paid. Clients have introduced policies to refuse time that is too old; firms have backed this up by setting time and billing systems to reinforce this. Having a partner being told that the client will not be billed, and he will not be paid, for his 45 worked hours because they are too late certainly brings home the point of timely time entry.

    Bill in accordance with Jay Foonberg’s “Graph of Gratitude.” Jay Foonberg is both a CPA and a lawyer and the author of the venerable “How to Start and Build a Law Practice” (now in its 6th edition). In his graph, you can see when is the best time to render an account based on when the work was done. Gratitude does not age well — send your bill before it has eroded. By maximizing your account collections, you and your colleagues don’t have to bill 115% of your target collected income just to realize 100% of your collected fees target.

    While measuring billable targets and billable rates are fine, they are too early in the cash flow cycle to translate into cash in hand. Make sure you are measuring collected rates and cash collections and tie these metrics to performance evaluations to keep your time billers focused on producing work that leads to collections and not just monthly invoice targets.

    Lastly, pay draws based on accounts paid, not fees billed. Cash is king and notwithstanding accountants and their accrual systems, you can’t spend cash you haven’t received.

    These are a sampling of the techniques that can be implemented by law firms to increase their bottom line without flogging associates and partners to death and hopefully increasing associates quality of life. We can do a lot of things different.

    Time Management is the Flip Side of the Coin to Billing Time

    Better time management can reduce long hours in the office spent meeting your billable time goal. Here are a selection of time management best practices:

    Keep track of time spent on all tasks (billable and non-billable): You need to know where you spend your time — billable and non-billable. You can see which are the unproductive time wasters and concentrate on your productive tasks. Today there are technological tools that will highlight time wasting activities.

    Prioritize tasks: Time management is partly developing the ability to discern what needs to be done from the rest and then doing it — promptly.

    Create a To-Do list and sort your tasks into four categories:

    Important and Urgent: Do these First — they are the most important work to be done today.
    Important but not Urgent: Make room for these… they are longer term goals; schedule them into your day after the important and urgent tasks.
    Urgent but not Important: These are Time Sinks… schedule them low in priority.
    Neither Important nor Urgent: Put on the Never Never list — they are not taking you toward any of your goals.
    Ask assigning partner for a billable hours goal for a task (keep assignments on budget): When someone assigns a task, ask “How much time do you want me to put into this before we sit down for a review?” You both establish a block of time and a deadline for the task and avoid “project creep.”

    Break complex tasks into smaller, manageable bites: Break bigger tasks into bite-sized chunks and allocate those to your time schedule.

    This article is excerpted from an upcoming article on the Rules For Winning The War For Talent While Improving Profitability by Steven Campbell CPA and David J. Bilinsky for the American Bar Association’s Law Practice Magazine. Steven Campbell is a Consultant with Acumen Consulting, LLC. Steven has been a pioneer in data-driven profitability analysis and performance management in law firms.

    (This article previously appeared at PracticeTalk and Tech Tips in the CBA Publication Bartalk for June 2022.

    https://www.cbabc.org/BarTalk/Articles/2022/June/Columns/The-War-for-Talent

    https://www.cbabc.org/BarTalk/Articles/2022/June/Columns/Time-Management-is-the-Flip-Side-of-the-Coin-to-Bi)

    Posted in Business Development, Issues facing Law Firms, Law Firm Strategy, Trends | Permalink | No Comments »
    June 20th, 2022

     

    ♫ Listen
    Do you want to know a secret
    Do you promise not to tell, whoa oh, oh…

    – Music and Lyrics by Lennon-McCartney, recorded by The Beatles

    Back in December 2017, I wrote the following cybersecurity article as my regular column “PracticeTalk” for  The Canadian Bar Association’s BarTalk.

    I thought it was opportune to update it and republish it and here in light of current developments at Microsoft and elsewhere that take a positive step forward for security on the web.  While businesses take proactive steps to harden their online security, the same may not be true of families and individuals. With so many individuals working from home or in hybrid environments, I thought it was a positive step for Microsoft to announce that they have made the Microsoft Defender app, a new online security application for Microsoft 365 to Personal and Family subscribers beginning June 16, 2002.

    What does Microsoft Defender App do? For one, it reaches across multiple operating systems and devices, since most families have a mix of Windows, macOS, iOS, and Android devices in their households. I believe this is a major step forward in viewing security from an overall ownership perspective rather than on an operating system or device-centric perspective.

    Secondly, what does it do? Microsoft states:

    Microsoft Defender App includes continuous antivirus and anti-phishing protection for your data and devices,  and will enable you to:

    • Manage your security protections and view security protections for everyone in your family, from a single easy-to-use, centralized dashboard.
    • View your existing antivirus protection (such as Norton or McAfee). Defender recognizes these protections within the dashboard.
    • Extend Windows device protections to iOS, Android, and macOS devices for cross-platform malware protection on the devices you and your family use the most.
    • Receive instant security alerts, resolution strategies, and expert tips to help keep your data and devices secure.

    You can get the link to download Microsoft Defender for all your devices here: https://www.microsoft.com/en-ca/microsoft-365/microsoft-defender-for-individuals?rtc=1 

    Here is the original column:

    We don’t have to worry about being hacked. We are one of the biggest law firms and have a whole department concerned with IT Security.” However, Bloomberg Law reported that Mandiant, a cybersecurity firm has stated that 80 of the 100 biggest US law firms have been hacked since 2011.

    We don’t have to worry about being hacked. Hackers only go after the big fish, not us.” But, parachute.cloud reported that: 28% of all data breaches involve small businesses in 2022.

    The fact is that while large law firms can throw considerable resources at cybersecurity, hackers are also throwing large resources back at them seeking valuable confidential information for resale on the black market. After all, information is money. Smaller law firms are also targeted on the basis that they are easier to attack and criminals can demand quick cash by holding a law firm’s data hostage. Such ransomware attacks are high in volume and don’t require any middlemen.

    In Law Firm Data Hack, Part 1 in lawpracticetoday.org, Sharon Nelson and John Simek stated that: “Nearly 50 law firms were targeted by a Russian cybercriminal who posted on a cybercriminal forum seeking a hacker to collaborate with him. He hoped to hire a black-hat hacker to handle the technical part of breaking into the law firms, offering to pay $100,000, plus another 45,000 rubles (about $564). He offered to split the proceeds of any insider trading 50-50 after the first $1 million.”

    Cynet.com reported that a Providence law firm was held hostage for a $25,000 ransom. However, the decryption key initially failed to work and the firm had to pay more. It lost $700,000 in billings alone.

    Large or small, a law firm’s secrets, reputations and finances are placed at risk in a hack. As a result, managing partners of all sizes of law firms have yet another thing to worry about.

    There are two major components to law firm security. One concern is the vulnerability of the system’s hardware and software. The other concern is the vulnerability of the “carbonware” – or in other words, the humans using the system.

    According to LexisNexis, there are six key security steps for law firms to take.

    • The first is to put all your IT security policies in writing and hold training sessions around them to maximize security awareness for all employees.
    • The second is to inventory all your data and detail who has what permissions or control over the various parts of the system.
    • The third is to only grant access on a “need to know” basis. That way, even if someone’s credentials are hacked, the hackers don’t get access to your entire system.
    • Fourthly, keep all your systems updated and patched. I am amazed at the number of lawyers who are still using outdated browsers, operating systems and anti-virus suites.
    • Fifthly, ensure that you have adequate insurance that will cover you depending on your loss (see Insurance Issues: Risk Management, 2017: No. 2 Summer – a Guide to Insurance for Private Practitioners by the Law Society of BC).
    • Lastly but not least, have a “breach ready” response plan so you have pre-planned how to respond if you experience a cyber breach. The boy scouts’ advice on “Being Prepared” applies here!

    By taking steps now, you can diminish the possibility that your reputation and financial well-being will be damaged by a hack. After all, you don’t want someone asking if someone wants to know one of your secrets….

    What steps can you take to protect yourself and reduce the possibility that you will be hacked aside from installing Microsoft Defender?

    A selection of the top tips (this article, which originally appeared in 2017 has been updated to 2022):

    • Use strong passwords and a password manager. CyberNews.com  has a great article on creating a strong password and recommended password managers. Most password managers will generate strong passwords for you. GRC.com and other sites will generate a new, unique strong password for you every time you visit (that you can then copy and paste into a password manager, such as Keychain for the Mac). WireCutter in the New York Times reviews the best password managers for 2012. Don’t use the same password everywhere and don’t keep passwords in a document on your PC!
    • Use two-factor authentication. This inserts an extra step before you can sign into websites to access email, Facebook and others. The site sends a code to your phone by text that you have to enter after entering your name and password. Without this code, the website won’t let you in. Even if hackers gain your password, without access to your phone they are locked out. Cloudflare.com has a useful article on two-factor authentication and how to use it. TechRepublic.com has a PDF, written for non-techies, along with links on how to set up two-factor authentication on many services. You have to sign up to TechRepublic but it is free. (PDF: How to set up two-factor authentication for your favorite platforms and services.)
    • Be careful with emails! Email phishing scams come in many forms. MalwareBytes.com has a great article: What is Phishing  and How You Can Protect Yourself.
    • Protect your mobile devices. Cellphones are tantalizing devices for hackers seeking ways to break into business networks. The PreyProject.com has a great article on the 20 ways to secure your mobile phone with tips for both iPhones and Android. Rogers.com reported that nearly 1 in 4 people will experience loss, theft or damage to their wireless device in 2017. Unfortunately, I could not find an equivalent statistic for 2022.
    • Take steps to protect your business from ransomware. Cbia.com published Fourteen Tips to Protect your Business from Ransomware attacks. I would add one more tip: Back your data up in a secure, encrypted online storage service such as sync.com. Cloudwards.net has a review of sync.com and lists it as the best cloud storage in Canada. Sync.com is the overall winner as it is a zero-knowledge storage service (meaning that they have end-to-end encryption and you and only you have access to the decryption keys).

    When it comes to IT, one can think that you have adequate protection, that is, until you get hacked. I looked for Canadian data, but Cloudwards.net reports that:

    • Ransomware cost the world $20 billion in 2021. That number is expected to rise to $265 billion by 2031.8,
    • In 2021, 37 percent of all businesses and organizations were hit by ransomware.
    • Recovering from a ransomware attack cost businesses $1.85 million on average in 2021.
    • Out of all ransomware victims, 32 percent pay the ransom, but they only get 65 percent of their data back.
    • Only 57 percent of businesses are successful in recovering their data using a backup.

    Spending money on security and prevention is always money well spent.

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

    https://www.cbabc.org/BarTalk/Articles/2017/December/Columns/Guarding-Your-Confidences

    https://www.cbabc.org/BarTalk/Articles/2017/December/Columns/What-steps-can-you-take-to-protect-yourself-and-re)

     

    © 2022 David J. Bilinsky

    Posted in Issues facing Law Firms | Permalink | No Comments »
    June 13th, 2022

    divorcing couple

    (Image by Mohamed Hassan – Pixabay)

    ♫ Now it’s time for change
    I feel the the future
    In the hands of our youth… ♫

    — Music and Lyrics by D. McDaniel & N. Sixx, recorded by Mötley Crüe

    Does family law need deep structural changes in how it resolves disputes? John-Paul Boyd, QC, an accredited family law arbitrator, family law mediator, and parenting co-ordinator, in an article in The National (Feb. 2019) entitled: “Family Justice in Canada is at a Breaking Point”, wrote the following:

    “[W]e should consider removing family law matters from the courts altogether. These are disputes that could be moved into a specialized administrative system offering both adversarial and non-adversarial dispute resolution alongside: education on parenting after separation, child development and conflict management; social services providing parenting, housing and employment support; and financial and mental health counselling, parenting assessments and similar services.”

    John-Paul notes that the current system sees up to 80% of family law litigants as self-represented. High fees simply place lawyers out of reach for the vast majority of people undergoing family disputes. One can ask the question as to how long this can be sustained before the public views the social contract given to courts and lawyers to resolve such disputes as being broken and needing replacement.

    The Canadian Forum on Civil Justice (“CFCJ”) prepared an infographic on the “Cost of Family Law Disputes” from data from the Canadian Research Institute for Law and the Family’s (“CRILF’s”) “An Evaluation of the Cost of Family Law Disputes: Measuring the Cost Implications of Various Dispute Resolution Methods” report. They looked at Collaboration, Mediation, Arbitration, and Litigation and found that while Litigation was viewed at the most useful dispute resolution process for high-conflict disputes (such as: risk to an adult or child, risk to property, allegations of violence or substance use, mental disorder, or alienation), Mediation and Collaboration were most useful for low-conflict disputes (such as hearing the voices and preferences of children, disputes about care and parenting, child or spousal support, and division of property and debt). Almost all lawyers using collaboration and mediation agree that the results achieved are in the interests of the children.

    CFCJ found the average cost to resolve high-conflict disputes as follows: Collaboration was $25,110, Mediation $31,140, Arbitration $40,107, and Litigation $54,390. For low-conflict disputes the average costs were: Collaboration $6,269, Mediation $6,345, Arbitration $12,328, and Litigation $12,395. Clearly the financial costs drop and the social outcomes are higher when alternative methods to litigation are utilized.

    John-Paul Boyd, QC echos these findings: “[T]he public purse would be better spent supporting processes that are child-centred, holistic, cooperative to the extent possible, and promote the capacity of family members living apart to resolve disagreements on their own.”

    The studies show that the current system is not working for the vast majority of people with family law disputes. Now is the time for change.

    What other solutions to fixing Family Law have been proposed?

    Along with J.P. Boyd, QC’s suggestion of removing family cases from the courts and placing them into a special administrative tribunal aimed at promoting the well-being of children, he advocates greater use of unbundled legal services and non-lawyers assisting clients with legal problems.

    Here is a sampling of other solutions proposed to fix Family Law:

    Nick Hilborne wrote an article in legalfutures.co.uk entitled, “Family lawyers need to replace billing targets with new business model” (August 5, 2021) in which he interviewed Gillian Bishop, co-founder of pioneering London firm Family Law in Partnership (“FLiP”). Ms. Bishop stated: “Family lawyers should scrap billing targets and develop a new business model.” To Ms. Bishop, billing targets are a dead weight around the necks of many, many practitioners and lead to many young lawyers working longer and longer hours each day in order to hit them. “I have heard so many times that to record five hours chargeable a day you routinely have to be in the office twice that time. Just crazy.”

    Ms. Bishop stated, “a number of commercial firms now operate without a billing target model, showing that ‘it can be done,’ and the challenge was to create a variation of that model or ‘another model altogether’ that worked for the family law sector.”

    She also stated that she “would like to see greater use of collaborative law.”

    FLiP has taken some steps along a new path. Three years ago, FLiP started the first training scheme in psychologically based supervision to help family lawyers manage work-related stress and Ms. Bishop said, “that supervision should be compulsory for family lawyers.”

    In the UK, there is a major overhaul of family courts to protect domestic abuse victims. The Ministry of Justice published a press release stating:

    “Fundamental reform of how the courts hear cases, through a new investigative approach, will be trialed as part of the Integrated Domestic Abuse Courts pilot — these consider family and criminal matters in parallel in order to provide more consistent support for victims. Emphasis will be placed on getting to the root of an issue and ensuring all parties are safe and able to provide evidence on an equal footing — without the retraumatising effects of being in court with an abusive ex-partner.”

    The Ministry stated, “that this move came after an expert-led review into how the family courts handle domestic abuse and other serious offences had raised concerns that victims and children were being put at unnecessary risk.”

    In an article entitled, “A New Approach To Nesting In Family Law,” Aylward Game Family Law, in Australia, states:

    “Frequently after parents separate, it is the children who switch homes between the parents, with varying degrees of frequency. This means it is the children who are subject to the demands of frequent packing up and moving house in order to spend time with each of their parents. We have in the past reflected that it must feel a little unfair to the children to be subject to this arrangement, which can be very disruptive.

    The idea behind nesting turns this on its head, and the children stay in one house and the parents are the ones who move in and out. This seems to place the best interests of the children at the top of the list of priorities, which is in line with the Family Law Act in Australia.”

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

    https://www.cbabc.org/BarTalk/Articles/2021/October/Columns/Examining-the-Facts

    https://www.cbabc.org/BarTalk/Articles/2021/October/Columns/Solutions-Put-Forward-to-Change-Family-Law)

    © 2022 David J. Bilinsky

    Posted in Trends | Permalink | No Comments »
    May 23rd, 2022

    ♫ There’s a light at the end of the tunnel
    There’s a chance that it ain’t gonna rain
    There’s a light at the end of the tunnel
    And for once it ain’t a fast moving train…♫

    Music and Lyrics by Don Cook, Keith Whitley, recorded by Keith Whitley.

    On May 12, 2022 the British Columbia Court of Appeal issued reasons in the case of:

    Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2022 BCCA 163.

    The case concerns the establishment of British Columbia’s Civil Resolution Tribunal and in particular, its jurisdiction over ‘minor’ injuries in motor vehicle accidents.

    The history of the case is summarized in the headnote:

    In 2019, legislation came into force that granted to the Civil Resolution Tribunal (CRT) jurisdiction to decide liability and damages for minor injuries (a statutory category) resulting from motor vehicle accidents. Aspects of this jurisdiction are exclusive and others are shared with the Supreme Court of British Columbia. In brief, the CRT was given exclusive jurisdiction to classify an injury as a minor injury. This triggers a presumption that the associated damages are below the tribunal limit amount ($50,000). The CRT has presumptive, but not exclusive, jurisdiction to adjudicate the liability and damages when the presumption that the damages will be below the tribunal limit amount has not been rebutted. The legislation directs the Supreme Court to dismiss or stay matters that are within the jurisdiction of the CRT unless it would not be in the interests of justice and fairness. Parties may apply for judicial review of decisions of the CRT, with decisions relating to liability and damages being reviewed on roughly the appellate standard of review.

    The Trial Lawyers Association of British Columbia and several plaintiffs in motor vehicle claims challenged the scheme, arguing in part that the grant of jurisdiction to the CRT offended s. 96 of the Constitution Act, 1867. They argued that the scheme impermissibly granted to the CRT a jurisdiction that was dominated by the superior courts at the time of Confederation. The challenge was successful, with the judge declaring the relevant provisions of the legislation to be of no force or effect.

    The Trial Lawyers were successful at trial before Chief Justice Hinkson of the Supreme Court. On appeal, The Honourable Chief Justice Bauman stated:

    In a summary trial before the Chief Justice of the Supreme Court, he concluded that the Province’s scheme offended s. 96. He struck down certain provisions in the legislative package.

    I have concluded that he erred in doing so.

    In so doing, concurred by The Honourable Mr. Justice Butler (with Dissenting Reasons by The Honourable Madam Justice Bennett), the majority of the court has resuscitated the ongoing experiment in access to justice represented by the BC Civil Resolution Tribunal in the area of automotive injury resolution.

    A bit of an explanation is required. The CRT – or Civil Resolution Tribunal – is a creature of statute. The CRT is Canada’s first online tribunal. It is part of the British Columbia public justice system and it represents an example of moving public justice out of the ‘bricks and mortar’ world into the ‘clicks and order’ world of the Internet and Online Dispute Resolution. It represents a growing body of thought called Court-related dispute resolution.

    What is court-related dispute resolution? The National Center for State Courts (https://www.ncsc.org/odr/guidance-and-tools) states:

    Court-related Online Dispute Resolution (ODR) is a public facing digital space in which parties can convene to resolve their dispute or case.

    Three essential components differentiate court-related ODR from other forms of technology-supported dispute resolution:

    The first is that the program operates exclusively online. In contrast to other court programs that provide an online interface with which to accomplish discrete tasks (e.g., e-filing, video hearings), ODR users do not otherwise interact with the court for traditional in-court procedures or events.

    The second is that the program is explicitly designed to assist litigants in resolving their dispute or case, rather than a technology platform to support judicial or court staff decision-making. Dispute resolution inherently includes the potential to challenge the validity of claims or to raise affirmative defenses; court-related ODR is not merely a platform for defendants to negotiate a payment schedule to satisfy debts.

    Third, the program is hosted or supported by the judicial branch. It is not a form of private ADR, but instead integrates and extends dispute resolution services offered by the judicial branch into digital space to serve citizens efficiently, effectively, transparently, and fairly.

    Chief Justice Bauman summarized the challenge to the jurisdiction of the CRT as follows:

    [1] Canada’s Constitution creates a division of legislative powers between the federal parliament and the provincial legislatures.

    [2] In respect of the judicial system and the judiciary, by s. 92(14) of the Constitution Act, 1867, the provinces “may exclusively make laws” in respect of matters coming within the subject: “The Administration of Justice in the Province.”

    [3] In the language of the cases there is a “subtraction” from that exclusive power reserved to the federal executive by s. 96:

    96 The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

    [4] Again, in the language of the cases there is much more to s. 96 than first meets the eye. It goes beyond a mere power to appoint judges to effectively preclude the provinces from creating courts or administrative tribunals with powers that parallel or mirror the “core jurisdiction” of the Superior Courts described in s. 96.

    [5] Here, the Province of British Columbia has vested an administrative tribunal, the Civil Resolution Tribunal (“CRT”), created by the executive branch, with a certain jurisdiction over the resolution and disposition of so-called “minor injury” claims arising out of motor vehicle accidents in the Province.

    [6] The question before us is whether it has done so within permissible bounds given the jurisprudence that has developed around s. 96.

    In essence the question became: Are the courts tied to the format of the courts as outlined in 1867 in  s. 96 or can a province create an administrative tribunal (the CRT) that represents an ‘experiment’ in access to justice that can exist as part of the Justice System?

    The Court recognized the broader implications raised by the challenge to the CRT and the Chief Justice stated in his reasons as follows:

    Important Societal Objective

    [147] I will deal with each of these factors in turn but I will begin with the last factor—an important societal objective. It is likely error to give any one factor predominance in the analysis but to my mind this factor is a very significant one when one accepts Chief Justice Wagner’s concern with not interfering “with the ability of the provinces and territories to experiment with new forms of access to civil justice.”

    [148] The need for “experimentation”—for innovation—in access to civil justice for victims of minor injuries suffered in motor vehicle accidents in British Columbia is self-evident in light of the EY Report. That report makes clear that the existing system of compensating for minor personal injuries in tort is threatening the viability of the public insurer, ICBC, and equally the actual compensation recovered by the victims of these minor injuries. In this latter regard, “In BC today, claimants receive less than 60% of their premium as benefits, with the remainder going to scheme costs including legal costs and disbursements. Best-in-class schemes around the world return approximately 80% of premiums as benefits to claimants”: EY Report at 54. I note that the EY report does not break this down specifically for minor injuries. It highlighted that more was being distributed as legal costs (24%) than to minor injuries (20%) or non-minor injuries (17%).

    [149] In light of the EY Report, one can only conclude that there were serious issues facing British Columbia with the tort regime in place before the legislative action before the court was taken.

    [150] If my tone suggests that I have concluded that the concerns identified by the EY Report and the executive branch are well-founded, I hasten to say that this judgment is not the remit of this Court. It is for the legislative branch to so conclude. I am concerned only with determining if there is a rational basis for the concern—a rational basis for the societal objectives evidenced in the legislative reforms before the Court. On the basis of the evidentiary record, and in particular the EY Report, there most certainly is. It is not for the Court to pass on whether the legislature “got it right” with its reforms. It is not for this Court to say whether the Civil Resolution Tribunal will actually perform as promised. In this regard the evidence of Professors Daly and Susskind provides a rational basis for the legislature believing it to be so. With respect to the judge below, it is not for us to require the appellants to prove the efficacy of the “solutions” the legislature is applying to the problems it has identified.

    The Chief Justice goes on and then states:

    [167] In my view, the legislative scheme before the court represents an integrated, comprehensive effort at reform directed at a social mischief starkly identified by the other branches of government.

    By no means do I advocate that the CRT is a perfect solution or that it does not have faults. It represents a new way of dealing with legal disputes and as such, it can, and indeed should, be modified, changed and adjusted to address perceived shortcomings. The world is watching the CRT and waiting to see if the concept can be applied to other courts and proceedings in other jurisdictions. It would be a major setback for access to justice innovators to see the CRT’s jurisdiction erased and the experiment stopped.

    The decision may, and most probably will,  be taken to the Supreme Court of Canada. I for one hope that the Supreme Court of Canada follows the lead of Chief Justice Bauman. For those of us who advocate for greater access to justice, who advocate for innovative approaches to addressing injustice and providing cost-justified solutions to everyday legal problems, who advocate for solutions that take advantage of all the barrier-breaking power that technology developed in today’s information age can provide, and for solutions that are not hide-bound by the structure of the justice system prevailing in 1867, the words of Chief Justice Bauman represent a light at the end of the tunnel…

    (Full disclosure: the writer is a Fellow of the National Center for Technology and Dispute Resolution at the University of Massachusetts https://odr.info and has written and presented on Online Dispute Resolution worldwide).

    © 2022 David J. Bilinsky

    (Concurrently published both on http://slaw.ca and this blog.)

    Posted in Technology | Permalink | No Comments »
    May 16th, 2022

    How Successful Law Firms Really Work

    ♫ Nobody does it better
    Makes me feel sad for the rest
    Nobody does it half as good as you
    Baby, you’re the best…♫

    Lyrics and music by: Marvin Hamlisch, Carole Sager, recorded by Carly Simon.

    I haven’t done a book report in a good long while.  But I am going to make an exception this time.

    A book has come along that every lawyer who wishes to run a firm at its peak should not only have on his/her shelf but it should be well-thumbed, stained from coffee spills, its cover torn from constant use and sitting on the corner of their desk within arm’s reach for quick reference. I am speaking of “How Successful Law Firms Really Work” by David L. Ginsberg and Robert A. Feisee, published by the American Bar Association, Law Practice Division (“HSLFRW”)

    A few books have been written that outline how to run a law firm. “How to Start and Build a Law Practice” by Jay Foonberg, now in its 6th edition, is perhaps the grand-daddy of them all. But Ginsberg and Feisee have taken all the collective wisdom of running a law practice and condensed it into 332 pages of sage advice. Is it the bee-all and end-all of law practice management books?  No – but it is an excellent compilation and overview from a 50,000 foot perch, of the things that you should consider in keeping all the balls of legal management in the air.  From here you would be well-versed into jumping into any number of books that address the specific needs of law firm management for greater in-depth knowledge.

    Who is it aimed at?  HSLFRW focuses on the operation of a small to medium sized law firm. It is designed to aid you in the step-by-step creation of your customized business plan by addressing the issues raised in each successive chapter. But it is more than that. It integrates and builds on each chapter by illuminating and then integrating concepts so that you come out of the process with an appreciation of how each pillar upholds the operation of a law firm works and with its companions.

    The book starts with a chapter “How to Use This Book” which starts a reader off on the right foot in terms of how to make the most of what is set out in the subsequent chapters.  The premise is that lawyers, no matter how brilliant, may lack basic business skills; and it seeks to help lawyers of all levels master and implement proven business strategies.

    The book starts with questions of ownership and how to structure your team for maximum effect. Since all firms rise or fall by their people, human resources comes next. Moving on to training, it deals with issues of how to mold your staff and professionals into an efficient and productive team.

    Managing your time is next, since you will have to be able to schedule management tasks as well as legal work into your daily schedule and keep all pots, so to speak, on a constant simmer.

    With the fundamentals taken care of the book moves to clients:  Who are your ideal clients and how do you market to them and then manage them.  What does your legal product look like and how do you deliver services within a clearly defined scope of work.  What is your role relative to your clients?  Emphasizing that ethics underpins all that you do, a chapter on how to stay out of trouble is next.

    Then we jump to more of the nitty-gritty of running a firm.  Finances, budgeting and managing money is next; followed by technology and systems. Since firms run on procedures, there is a chapter on how to develop procedures customized for your firm.

    Next is your office environment – how does your firm look and how does it operate?  Which one are you – a business or a profession – and the implications of viewing your firm each way and what is your definition of success?

    Strategic Planning – both short and long term – are included as are emergency planning and wellness: how to care for yourself.

    Lastly the book concludes with the statement that you are now ready to run your own firm.

    Whether for lawyers just starting out or for lawyers seeking to make partner or better yet, managing partner and desiring knowledge to take them to the next level, this book is a tour-de-force. At $85 for non-ABA members, $68 for ABA members (all USD) it is a steal. You can order it online from the ABA here.

    This book is so good it makes me sad for the rest.  I have but one regret with regards to it…I wish I had written it.

    © 2022 David J. Bilinsky

    (Concurrently published both on http://slaw.ca and this blog.)

    Posted in Budgeting, Business Development, Change Management, Firm Governance, Issues facing Law Firms, Law Firm Strategy, Leadership and Strategic Planning, Technology, Tips | Permalink | No Comments »
    May 9th, 2022

     

    Attribution 2.0 Generic (CC BY 2.0)

    ♫ Slip sliding away, slip sliding away
    You know the nearer your destination, the more you’re slip sliding away… ♫

    Lyrics, Music and Recorded by Paul Simon.

    Something extraordinary is taking place in Ontario.

    Family law lawyer Russell Alexander of Russell Alexander Collaborative Family Law Lawyers of Toronto and six other locations in Ontario, Canada has started an online petition on Change.org entitled: “Petition to Amend the Requirement For In Person Court Attendances.”

    What are they petitioning for, you ask?  Good question:

    “We, the undersigned lawyers and paralegals who practise family law, hereby petition to the Attorney General of Ontario and to the Regional Senior Justices, that there shall be immediately put in place an overriding direction that all court attendances shall be presumptively virtual unless the parties and their counsel agree otherwise or if the court for good reason orders that a particular attendance shall be in person or hybrid (ie. some may attend virtually and some may attend in person).”

    They state the issue as follows:

    “The Issue

    1. The Chief Justice and Regional Senior Justices at both Ontario court levels (Ontario Court of Justice and Ontario Superior Court of Justice) have issued Notices to the Profession that stipulate revised practices and standards to determine whether various types of court attendances shall be in person or virtual.

    2. While the directions are not always consistent, there is a disturbing trend to emphasize the necessity for in person attendances as opposed to virtual attendances.”

    Their petition has garnered 987 signatures as of the date of writing.

    It seems that many people agree with Russell that the move to virtual hearings has has a number of benefits and increased access to justice.  A selection of the reasons for signing the petition highlights many of them:

    • Diego Cariaga writes: “Virtual hearings will continue to spare lawyers and clients of unnecessary stress and costs since for the vast majority of litigation matters it is not necessary or helpful to appear in-person (as COVID-19 has demonstrated)”
    • Catherine Haber: “I am a practicing family lawyer with many years of experience.Virtual hearings are far more cost effficient for the public.There is little advantage to more costly in person hearings.”
    • Tom Dart: “Virtual appearances lower costs to the client where they are represented. We need to look at the attendances from the client perspective. Where clients can’t access the internet, in person may be the only method. In person should be reserved for such cases. I agree with the other reasons submitted as well.”
    • Rachelle Laforge: “Prior to the pandemic, the court system was operating with technology and resources from the 90s at best. The court system has not been at the forefront of innovation but was forced into it during the pandemic.One of the positive outcomes of the pandemic has been that the court system was catapulted into present times as far as technology goes.Innovation is about solving real problems. Virtual court hearings provide:- More access to justice (anyone with a phone can have access…no need to drive, fly, cab it to the court house and pay for parking)
      – Costs have been significantly lowered for clients (no need to pay lawyers to drive to court houses and wait around on running lists)
      – Ease of presentation of documents – which sometimes need to be voluminous in cases of coercive control (I had a case where I needed the judge to consider 117 messages from a dangerous self-rep where he wrote emails with Bold lettering, coloured text and coloured highlights)…
      – Zoom hearings provide for opportunities to have break out rooms where parties and lawyers can quickly jump in and out of…cant do that quickly in person;
      – French speaking parties can get counsel from anywhere in the province to attend without incurring prohibitive costs;
      Clients in northern Ontario and other small communities are limited for representation due to conflicts…virtual proceedings provides for clients to be able to go outside their community for representation without the prohibitive costs of travel.”

    Russell Alexander sets out the case for keeping virtual hearings as well:

    The Case for Dropping the Presumption

    This risk is remedied by the use of remote/virtual case conferences, because it actually improves access to justice and the expeditious resolution of disputes in several ways.

    First, let’s revisit the odds of settlement: If only 10% of cases resolve at the first case conference, it may be a fair inference that these same 10% would also resolve their matters via a Zoom case conference. This renders the in-person experience to be arguably unnecessary.

    Second, the costs savings of Zoom conferences are significant. No travel, no parking, no traffic. Court security line-ups, confrontations, and courthouse conflicts are all eliminated. There is no more sitting around for several hours or the entire day. Legal expenses each of the lawyers representing the parties are also significantly reduced.

    Third, access to justice can only continue to improve. Clients can choose their preferred lawyer from anywhere in the province. Lawyers will be more readily available for the currently under-served northern and rural communities. Clients with legal aid certificates will be more likely to secure a lawyer.

    Fourth, technology and the internet heighten accessibly to the justice system, as compared to having to travel several hours to the courthouse and back. Most people can access a case conference through Zoom – even if its with the assistance of a friend, family, or employer. Justice “hubs” can be set up at libraries or the SCJ’s family law information centres, or in empty SCJ courtrooms, for parties who cannot access the required technology. There are many other innovative ideas to address the issues of technology and connectivity.

    Fifth, the court can implement procedures to screen and assist victims of domestic violence who are involved in family court matters. This will also help to regulate and prevent litigants who perpetrate domestic violence from using the litigation process to exact further harm, harassment, and psychological damage on their ex-partners.

    Sixth, the toll on peoples’ mental health of going to court in-person, confronting their ex-partner, dealing with conflict and potential health risks lingering from the pandemic can be remedied by via Zoom case conferences. Parties can conduct their hearing from the safety and privacy of their own homes.

    Seventh, the rise of self-represented litigants is a problem that plagues the Family Court system. Remote hearings by Zoom have stymied this, somewhat. It has helped those who would otherwise have to resort to self-representation, by freeing up more Family lawyers. Those lawyers could keep practicing and serving clients remotely, despite health concerns, daycare, and other needs. For example, clients in rural and northern communities were retaining lawyers with legal aid certificates from the GTA and other larger centres.

    If in-person hearings return to the old norm, many Family lawyers will simply no longer practice family law. That is the benefit of a law degree: We can choose to practice in any area of law that does not require in-person attendances. (And the list is endless: Wills, estates, real estate, corporate, tax, business and so on). An exodus of Family lawyers will result in fewer lawyers accepting legal aid certificates, and increased time and expense associated with in-person hearings.

    All of this will result in alarming spikes in the number of self-represented litigants.

    Plus, self-represented litigants often require greater time and resources to adjudicate their matters. They may be unable to focus on the legal issues. They may not understand the law, fail to comply with the Family Law Rules, and be unaware that there are rules of evidence and court-issued practice directions that they need to follow. They can sometimes be vexatious. All of this often results in mental and emotional strain on the judiciary, and can lead to burnout, inertia and the justice system’s slide to entropy.

    To emphasize the point with the court, Russell and his crew are holding a virtual press conference May 10, 2022:

    Panel of Ontario Family Lawyers to Hold Virtual Press Conference Calling for Courts to Continue Remote Hearings
    Lawyers say so-called ‘Zoom divorces’ save clients’ time and money and should continue

    Their press release states as follows:

    WHAT:

    A panel of veteran Ontario family lawyers will host a virtual press conference to discuss the recent Notice to the Profession from the Ontario Superior Court of Justice ordering the return to in-person court attendance. The thrust of these pronouncements is that many court hearings will revert to in-person from virtual, which will mean less access to justice and higher legal costs for many clients.

    The panel recently started a petition that has received over 900 family lawyer signatures thus far in attempt to reverse the decision.

    The media is invited to attend the press conference to learn more about what this means for family lawyers in Ontario and those seeking divorce. There will be an opportunity to ask questions.

    Registration is required to attend via Zoom by completing the sign-up form below.

    WHERE:

    On Zoom: https://us02web.zoom.us/webinar/register/WN_zw6hCGIlT36zQ-7vGpAPBQ

    WHEN:

    Tuesday, May 10, 10 a.m. ET

    WHO:

    The Ad Hoc Committee for the Preservation of Access to Justice consists of:

    • Russell Alexander-Founder and Senior Partner at Russell Alexander Collaborative Family Lawyers, practicing for 24 years (Called to the Ontario Bar in 1998)
    • Gene C. Colman-Founder of Gene C. Colman Family Law Centre, practicing for 43 years (Called to the Ontario Bar in 1979)
    • Natalie Derbyshire-Partner at Stanchieri Family Law Professional Corporation, practicing for 16 years (Called to the Ontario Bar in 2006)
    • Brian Galbraith-Owner and Founder of Galbraith Family Law Professional Corporation, practicing for 32 years (since 1990)
    • LisaGelman-Founder of Gelmanand Associates, practicing for 27 years (Called to the Ontario Bar in 1995)
      Gary Joseph-Managing Partner and Chair at MacDonald & Partners LLP, practicing for 44 years (Called to the Ontario Bar in 1978)
    • Karen Kotansky-Managing Partner at Gelman and Associates, practicing for 28 years (Called to the Ontario Bar in 1994)
    • Nafisa Nazarali-Managing Associate Lawyer at Russell Alexander Collaborative Family Lawyers, practicing for 12 years (Called to the Ontario Bar in 2010)
    • Ram Shankar-Founder of Shankar Law Office, practicing for 28 years (Called to the Bar in India in 1994. Called to the Ontario Bar in 2014)

    I will be watching the press conference with interest this coming Tuesday. The move to virtual court hearings, in my opinion, was a positive one and should be continued for all the reasons noted above and more. It remains to be seen if this novel approach to achieving change in the profession will ultimately be successful. But it is certainly aimed at keeping the changes that have occurred in the courts from slip-sliding away…

    © 2022 David J. Bilinsky

    (Concurrently published both on slaw.ca and this blog.)

     

    Posted in Change Management, Issues facing Law Firms, Law Firm Strategy, Leadership and Strategic Planning, Technology | Permalink | No Comments »
    May 2nd, 2022

    Law

    License details
    Creator: Daniel Kulinski
    Copyright: Daniel*1977, 2009

    ♫ Something new is going on tonight
    I like this grove, it makes me feel so right
    Darling you know you better hold on tight
    Something new is coming on tonight… 

    — Music and lyrics by A. Mae, N. Yanofsky, F. Golde, J. Faulker, H. Hancock,
    J. Watley, A. Cymone, R. Kleiner, Q. Jones and recorded by Andrea

    In April 2021 I wrote a column on CILEX, the Chartered Institute of Legal Executives (“CILEX”) in the UK for my regular column PracticeTalk for the Canadian Bar Association. As of June 2021,  CILEX was offering the CLIEX Professional Qualification (“CPQ”) program that offered a different path to becoming a legal professional in the UK. At that time there was a lot of talk about what CILEX’s entrance into the market might mean for students, for the legal profession, for regulators, for the public and the like. Well I thought we could take a step back and see where CILEX is today.

    The original column:

    In an article published February 21, 2021 in legalfutures.com entitled “Legal education and training: Unfit for purpose,” Professor Chris Bones states: “The revolution starts now. Legal education and training is not fit for today, let alone the future….”

    Prof. Bones is Chair of CILEX, the Chartered Institute of Legal Executives (“CILEx”) in the UK. CILEX is the professional association for 20,000 Chartered Legal Executive lawyers, paralegals, and other legal practitioners in England and Wales. They are recognized in England and Wales as one of the three core approved regulators of the legal profession alongside barristers and solicitors.

    CILEX offers education and training to become a legal secretary and an apprentice program that leads to being a paralegal, advanced paralegal or Chartered Legal Executive and Chartered Legal Executive Lawyer.

    While traditional lawyers are generalists on graduation, CILEX lawyers can achieve a specialist designation on graduation in: Dispute Resolution; Criminal Litigation; Residential Conveyancing; Commercial Conveyancing; Employment Law; Business & Commercial Law; Family Litigation; Wills & Probate; or Immigration Law.

    CILEX claims that their professionals are demonstrably more diverse and representative of the UK population than their peers in other branches of the profession. CILEX does not restrict access to candidates with a specific set of prior qualifications; it opens up the profession to people from all backgrounds, including those who have not gone to university.

    Their education program requires their students to work in a legal environment from the very beginning of their studies. CILEX states that students apply their learning to practical scenarios and build and refine the skills of a practising lawyer as they progress. They claim that their model requires their employers to validate their experience and competence at every stage, meaning practical, work-based skills are “baked-in” to the training and that CILEX trainees become adept at using legal expertise to address real-world challenges for their clients from the outset.

    They recognize that legal technology holds immense potential to benefit both the consumer and the legal services provider by improving efficiency, by reducing costs and by enhancing accessibility. CLIEX states that they support the responsible uptake of technology and innovation in the legal sector, insofar as such progress continues to benefit the consumer.

    CLIEX states that they have a focus on technical expertise and practical skills with the development of the core behaviours required to create forward-thinking, commercially minded, adaptable lawyers who really understand the clients they serve.

    The CLIEX Professional Qualification (“CPQ”) program “sets new standards in practice-focused training and work-readiness, broadens access to legal careers and develops professionals at all levels who are equipped from the outset to add real value to their employers and clients.”

    Students will be able to register for CPQ in June 2021. Something new is coming.


    According to CILEX, as of November 2021: “Some 140 new CILEX Fellows* and Advocates** swore an oath to mark their qualification at the annual graduation ceremony held by CILEX (Chartered Institute of Legal Executives) on Saturday.

    They were joined by a further 237 members, who were recognised for becoming Graduates, the step before becoming a CILEX Fellow.”

    CILEX Fellows have completed the academic stage of training, have been in qualifying employment for at least three years and have met the relevant work based learning outcomes. They are authorised by CILEX Regulation.

    CILEX Advocates are Fellows who have gained extended rights of audience in their practice area, allowing them to undertake advocacy in certain proceedings.

    CILEX Graduates have completed both their CILEX Level 3 Professional Diploma in Law and Practice and their CILEX Level 6 Professional Higher Diploma in Law and Practice, or equivalent studies.

    CILEX President, Caroline Jepson praised the graduates for their hard work and perseverance, recognising that so many achieved qualification while studying alongside full time work.

    She stated:

    “I have a plea for you today, and it is this – let us hear your voice. Join us in elbowing our way through the elite snobbery and let us together shut down those perceptions which have held us back for far too long.

    “Help us create a legal profession that is ‘qualification-route blind’ – one that appoints, rewards and promotes based on merit alone. Build pride in CILEX and help us reach the point where CILEX lawyers are automatically recognised and valued as specialist lawyers.”

    It seems that the experiment continues and these new legal professionals journey to find their new groove continues…

    © 2022 David J. Bilinsky

    Posted in Law Firm Strategy, Leadership and Strategic Planning, Legal Education, Trends | Permalink | No Comments »
    April 25th, 2022

    Uber and Lyft

    ♫ 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

    Posted in Issues facing Law Firms, Law Firm Strategy, Leadership and Strategic Planning, Technology, Trends | Permalink | No Comments »
    April 19th, 2022

    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

    Posted in Change Management, Issues facing Law Firms, Law Firm Strategy, Leadership and Strategic Planning, Technology, Trends | Permalink | No Comments »
    April 11th, 2022

    Lady Justice at the Supreme Courts, Vancouver, BC

    ( © 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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