♫ Oh, then won’t you embrace me?… ♫
— Music and lyrics by Greg Laswell

What does it mean for law to move into digital transformation? Let’s take a step back and get a bit of perspective.

At the beginning of time, law firms and courts kept all records on paper. The first step along this transformative path was to convert to electronic records. “Paving the cowpaths” meant that all records were now kept in electronic folder systems that were the electronic version of the file folder — or in other words, “digitalized.” All files were still kept the same and searched by brute force. Similar to paper, all storage and organizational systems were analogous, albeit on a digital platform. This is only slightly transformative since the same ways of thinking were used to handle digital documents as they did with paper.

To take the next step toward transformation, new ways of doing things must be chosen. Moving to a digital filing system allows for digital searches across the whole database; and it allows for new ways of working as all files can be shared and accessed from home or a remote office.  Practice management software can integrate with the filing and accounting systems, resulting in lawyers working from a digital desktop. In the court situation, case management software can now be used that integrates scheduling with court files, HR systems and more. It is the bringing together of multiple systems in one package that starts to open up new ways of thinking and with it, new processes.

Salesforce.com’s publication, “State of the Connected Customer,” states that “technology has significantly changed their expectations of how companies should interact with them.” For example, portals: secure websites, allow clients to gain access to all communications and documents on their file 24/7 and avoid insecure ways of communicating such as email. Furthermore, they can respond and leave instructions without going through voicemail or email jail.

The next step will be in applying Artificial Intelligence (“AI”) and Digital Analytics (“DA”) to law. AI already has revolutionized legal research, legal contract review, as well as litigation case analysis. DA has the promise of providing insights into new services that can be offered to clients by analyzing firm wide data based on client profiles.

Lastly, we have the transformation of the law via technology. Smart contracts on the Blockchain are an entirely different beast from a traditional contract. “A smart contract is a self-executing contract with the terms of the agreement between buyer and seller being directly written into lines of code. The code and the agreements contained therein exist across a distributed, decentralized Blockchain network. The code controls the execution, and transactions are trackable and irreversible.

Smart contracts permit trusted transactions and agreements to be carried out among disparate, anonymous parties without the need for a central authority, legal system, or external enforcement mechanism.” (per Investopedia)

Disputes over smart contracts can take place via Online Dispute Resolution (“ODR”) built into the Blockchain using virtual juries. The next step with ODR is to allow the software to help resolve disputes as the deciding party.

The Blockchain can be used to replace traditional ways of doing things. 20 Real-Life Uses for the Blockchain lists such uses as enforcing copyright; replacing land, automobile and other title transfer systems, medical record keeping, wills, equity trading, tracking prescriptions and many others.  With increased use of the Blockchain will come increased use of ODR and less reliance on traditional court systems. This is the transformative power of technology.

What is the future use of technology in law? Pega.com states: “Leaders are less concerned about using technology to increase profits, with 46% citing cost savings and 43% citing revenue generation as changes they are trying to achieve. Instead, 65% of leaders see it as an avenue to achieving higher quality work. Fifty percent of the leaders surveyed also believe technology will create more reliable work.”

In order for law firms and justice systems to move forward, I believe it will be essential for organizations to view technology as a way to change not just the way things are done but HOW you can do things differently and WHY. Digital transformation is about new ways of thinking, changing things and moving to the future. I can just hear technology saying to lawyers and judges: “Oh won’t you embrace me?”

Now – how do you further your firm down the digital transformation path?

Cybersecurity

COVID has only increased our working from home with distributed data sets on multiple devices and entry points into the office network. One way to harden your system is to put all your data in a secure cloud service that stores your data in a fully encrypted manner, where only you have the decryption key (a “Zero Knowledge” service). Cloudwards.net has rated the five best zero-knowledge cloud storage services — with Canada’s sync.com coming up on top.

Advantages of Sync

Sync is the strongest encryption possible, it demonstrates to your clients that security is important to you. Sync keeps track of all document versions and changes, you can share and collaborate just like you would with Dropbox, but securely, they state that sync.com meets global data privacy compliance (USA-HIPAA, EU, UK, CAN-PIPEDA) and your data remains in Canada.

Automating and Integrating Systems

Technology can automate the business side of the practice. By integrating billing, time keeping, general and trust accounting, calendaring, conflict checking, document automation, email and file integration, case management, and file management, you will set the stage for the next round of automation such as data analytics, AI, and process redesign for effectiveness and efficiency.

People

You can install the latest, first-rate tech systems but ultimately it may all be for naught unless you can implement change strategies that lead people to adopt the new systems. Part of the magic of digital transformation is the change in thinking that occurs when people use and think about how the new systems rework business processes. Leadership is the magic elixir. Explain why your firm is adopting these new systems. Outline the expected benefits, for not only the organization but also for staff. Be an early adopter and recruit other early adopters. Communicate wins. Acknowledge setbacks and handle criticism positively and early. Keep your eye on the long-term goal(s) and help others do the same.

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

https://www.cbabc.org/BarTalk/Articles/2021/February/Columns/Digital-Transformation

https://www.cbabc.org/BarTalk/Articles/2021/February/Columns/How-can-you-further-your-firm-down-the-digital-tra)

Bald Eagle Haida Gawaii

“I’ll spread my wings and learn how to fly. I’ll do what it takes ’til I touch the sky. And I’ll make a wish, take a chance, make a change and breakaway.” 

Lyrics and Music by Matthew Gerrard, Bridget Benenate and Avril Lavigne, recorded by Kelly Clarkson.

I am proud to announce that Thoughtful Legal Management is now open for business.

David J. Bilinsky, Barrister & Solicitor, is pleased to provide strategic legal practice management services and innovative technology and law firm finance advisory services for my clients. Building on 17 years in private practice, 20 years of experience at a Practice Management Advisor and ethics lawyer for the Law Society of BC, on top on an MBA focused on the application of legal technology to the practice of law, I have opened the doors to providing legal business, technology and ethics advisory services to lawyers.

Decades of  writing and presenting papers and articles, organizing and speaking at legal technology conferences, advising and assisting lawyers who have been wrestling with the complex areas of legal technology and practice management has provided unique and practical insights into how law firms must innovate in today’s changing environment.

My mission in life is to empower lawyers to anticipate the changes, realize the opportunities, face the challenges and embrace the expanding possibilities of the application of practice management concepts to the practice of law in innovative ways that provide service excellence.

And…I am here to assist those lawyers who wish to break away and learn how to fly.

Creative Commons Zero – CC0

♫ Sex crime, sex crime
Nineteen eighty four
Nineteen eighty four… ♫

— Music & Lyrics by A. Lennox, D. A. Stewart, recorded by The Eurythmics.

What will criminal law look like in 2041? There is a host of technologies being developed that are reshaping the entire criminal law playing field. From artificial intelligence (“AI”) to developments in surveillance, biometrics, DNA analysis, cellular triangulation, evidence analysis, voice recognition systems, advanced camera and image analysis and enhancement, Internet search technologies, the growth of the “dark web,” facial and voice recognition software, robotics, “shot spotter” technology, licence plate recognition, and many others that seem to walk out from CSI TV episodes and into our lives.

Other emerging projects seek to use real time computer and pattern analysis to predict and prevent crime. Using a network of cameras and technologies, these projects seek to analyze and assess suspicious activity and predict emergent criminal behaviour, alerting authorities far faster than traditional methods.

Still other projects seek to use AI to predict elder victims of financial and physical abuse, allowing authorities to intervene to prevent or stop such exploitation.

Robots and drones can be utilized to inform police regarding potentially dangerous situations and assist with public safety without putting the public and/or police in harm’s way.

DNA analysis is growing increasingly sophisticated; enhanced by the growth in forensic sciences.

On the court side, there is the increased growth and development of court management computer systems worldwide and the increased realization of the benefits that such systems bring to the administration of criminal justice. There is the work of such academic and non-profit organizations worldwide such as HiiL (The Hague Institute for Innovation of Law) that combine a data and research-based approach and best practices to promote people-based access to justice solutions.

Increasingly, courts world-wide are slowly gaining access to technology in order to present the range of high-tech evidence being collected by police and prosecutors working together. The Air India case in BC was a good example of a high-tech court designed around the needs of the Crown to present the volumes of video and documentary evidence that were amassed during the case efficiently and effectively.

Then there is the growth of trial preparation and trial presentation software along with case management systems available to defence lawyers to assist in the handling and presentation of their cases. From simple PowerPoint files to sophisticated trial presentation software on iPads, tablets, laptops, and other devices, to transcript, audio and video analysis tools, and others, criminal defence lawyers can present, highlight, call-out, compare, present, and emphasize evidence in ways never before possible that serve their client’s needs.

Technology is a tool. In the context of criminal law, it also raises ethical issues such as the due protection of privacy and the protection of constitutional rights. It raises issues of inherent bias built into algorithms and data analysis. There is the issue of transparency of such systems, as many will be proprietary and not open to analysis. Neural networks, quantum computing and other such emerging computing technologies are not well understood and, as such, explaining how they arrive at their conclusions may not even be possible. There is the danger of profiling and unfairly targeting individuals and/or groups. There is the danger of using systems to determine recidivism, particularly if someone is assessed at low risk and then goes on to commit violent acts.

Nineteen Eighty-Four gave us one insight into how technology, applied for the wrong purposes, could be used to control a whole world. Criminal lawyers stand at the cross-roads, guarding against such excesses and protecting liberties. But to do so, they must understand the emerging high-tech landscape in order to exercise their persuasive powers against
such misuses.

So what technologies are out there for a criminal lawyer to run their practices?

Trial Director is one of the leading trial presentation software packages available for trial lawyers.

It allows you to load in all transcripts and video evidence and organize your evidence into trial notebooks.

You can attach, view, and link exhibits and create a witness binder and exhibit lists.
Evidence can be presented by video clip and documents sections can be called out, zoomed and highlighted. Document sections can be placed side by side for comparisons, overlaid, and section redacted if necessary.

You can share document subsets securely with expert witnesses and consultants.
Trial teams can share the same case notebook with team members who work from a central trial notebooks.

TrialPad, TranscriptPad, DocReviewPad, ExhibitPad is a suite of litigation tools designed for use on an iPad. This suite of applications takes a litigator through the whole process of preparing for trial, including: document review, organizing documents for trial, loading exhibits with notes, reviewing transcripts, and then organizing it all into a trial notebook for presentation in court with dynamic exhibits, call-outs, and more.

CosmoLex is a fully-integrated general and trust accounting system with practice management. This one-stop solution provides you with all the systems to be compliant with both general accounting (balance sheet, income statement, accounts payable and receivable, and all other required accounting reports) as well as trust accounting (compliant with all Law Society trust accounting requirements) plus practice management (client lists, file lists, conflict checks, limitation date reminders, calendaring and bring-forward reminders, document management, email management, etc.) that a criminal lawyer needs to run both the business as well as the practice sides of their practices.

Microsoft Home and Business or Microsoft Office 365 provides you with desktop or cloud-based versions of Word, Excel, PowerPoint, Outlook, and more to perform all the email, communication, word processing, and other functions you will need as a practising lawyer. Alternatively, you can use the Apple suite that comes installed on a Mac (Pages, Numbers, Presentations, Mail) to accomplish the same functions in a Mac environment.

sync.com provides you with secure file backup, storage, and sharing based in Canada. This is a secure alternative to Dropbox that protects your practice against Ransomwear.

ScanSnap iX1500 is the scanning workhorse of the legal field. With full duplex scanning via its sheet feeder, the ScanSnap assists in taking paper documents and converting them into fully text-searchable documents that can take your practice paperless.

Smartphone There are many excellent smartphones like the iPhone 13, Google Pixel 6, or Samsung Galaxy A32, depending on whether you prefer the iOS or Android environment. More important that the phone, I believe, is your choice of carrier and data plan. A litigator is on the road a lot: choose a carrier with great service in the area(s) where you will be operating most often to avoid dropped calls and poor reception.

(originally published in PracticeTalk and TechTips, in the Canadian Bar Association’s BarTalk magazine: https://www.cbabc.org/BarTalk/Articles/2021/December/Columns/Criminal-Law-and-Technology and https://www.cbabc.org/BarTalk/Articles/2021/December/Columns/So-what-technologies-are-out-there-for-a-criminal)

♫ All the little birdies on Jaybird Street
Love to hear the robin go tweet tweet tweet…♫

Music and Lyrics by Thomas Jimmie, recorded by Michael Jackson.

Would you pay attention to an emerging marketing platform that has seen a 663% increase in people over the last two years looking for recommendations around professional services? I would imagine you would. Twitter is that platform. Now: how many of you have a thoughtful, continual and strategic presence on Twitter that engages the community from which you draw your clients? While we are at it, how many of you have a digital media marketing plan that includes Twitter and other social media platforms? If not, according to research carried out in the UK by Orange Business, you may be overlooking a big opportunity: “[S]econd on the list are solicitors, who may not be aware of the fees they could be missing out on by not engaging with the public and other businesses via Twitter,” (https://www.legalfutures.co.uk/latest-news/twitter-becoming-key-referral-source-for-solicitors-says-research).

Orange notes that lawyers need to do more than just be ‘on’ Twitter. You need to demonstrate your expertise, show that you know what you are talking about and share information far and wide. In other words, your Twitter presence should be part of a comprehensive and strategic social media marketing plan (a “SMMP”).

How do you build your SMMP? 

First, you need to learn about how SM is being used by lawyers in your area(s) or practice.  Look inwards and determine which services you provide that you wish to market and learn how other lawyers (perhaps in other jurisdictions) are using SM in relation to these services. Are they engaging on Twitter and if so, what hashtags are they using? Did they create YouTube videos that speak to their knowledge of an area of law? Are they on Facebook and if so, have they posted videos, articles or interviews? How about Instagram? Reddit? Quora? Snapchat? The idea is to think beyond LinkedIn, which frankly, every lawyer should already be on.

Now, determine what people are saying about you and your firm on SM. Research using Google, Facebook, Twitter and other SM platforms and see what is being said about you and your firm, if anything. This gives you a starting point together with an assessment of the SM landscape.

Determine how your target clients are holding conversations in SM that are relevant to you and your firm.  What topics are they discussing? This gives you a target of where you need to be in terms of platforms and topics.

Now set your strategy. How are you going to go about SM posts? Videos?  Photos? Articles? Will you engage in Twitter conversations on select topics? Comment on recent cases (hint: don’t use your recent cases – too easy to breach client confidentiality). Establish SM goals for your marketing focus.

Schedule your time and updates for SM. You will need regular, consistent and timely updates. How much time and money will you expend?  Set a budget.

Set up the metrics that you will use in determining if you are meeting your goals. You need to see if you efforts are bearing fruit.

Reach out and experiment and start to build your SM networks. Follow people. Comment. Experiment. Learn how people use the different platforms and become part of the community. Don’t hesitate to consult with SM experts to save time and speed up the process.

Your SM presence should aim to refer people back to your blog where your more detailed content is located and where people can learn about you (after all this is social media). Your blog is where you demonstrate your in-depth knowledge via the posts that you have written and people can find your contact information.

Unlike an advertisement, SM is a dialogue with your potential clients. Your skillful tweet tweet tweet can take you from being just another birdie in the tree to a rocking robin.

—

Who are the knowledgeable legal marketing personalities and organizations that are available to assist you in your marketing journey?

LMA:  The Legal Marketing Association is an international organization composed of consultants, vendors, lawyers, marketers from other professions, and marketing students. It has a Western Canadian Regional Governing Board, with Vancouver’s own Susan Van Dyke of Van Dyke Marketing & Communications as the 2019 President.  They are a tremendous resource for all areas of legal marketing. Follow their blog to stay current on news, trends and more. blog.legalmarketing.org 

In terms of on-line presence, you should be able to learn a great deal about legal marketing by seeing what advice experts in the field place on their blogs and web pages – for free. Examples of their work allows you to gauge the impact of their work; awards allow you to determine what their peers are saying about them. Here is a sampling of those people and organizations that I and others, consider strongly influential.

Skunkworks: The team at Skunkworks have become a local tour de force for lawyers and law firms here in BC. Doug Jasinski, Marnie MacLeod and Jeremy Hessing-Lewis have all done their time in the legal trenches and speak the language of lawyers and marketing. Their blog and examples of their work are a good place to start to see what local firms have achieved in thinking about their marketing message. https://skunkworks.ca/blog/ 

Stemlegal: Steve Matthews and his group form a web development, publishing and strategy juggernaut for the legal profession. They are a local company with a national presence and influence. Steve is tireless – not only does he look after his legal marketing company, he manages slaw.ca – Canada’s online legal magazine, he runs lawblogs.ca – Canada’s comprehensive listing of Canadian Legal Blogs, legalpubs.ca – which tracks the latest in Canadian legal publications and runs  ClawBies.ca  – Canada’s annual legal blogging awards.

Eva Chan: After practising advertising, marketing, and IT law at a national Canadian law firm for over 10 years, Eva is now a social media strategist, consultant and trainer.  More to the point she provides social media-related services to lawyers and law firms.  A ClawBie award winner, her blog https://www.evachanweb.ca/blog/ has articles such as Social Media Opportunities and Risks, How To Write an Engaging Social Media Post and Twitter tricks and treats (aka tips). She asks (and answers) such questions as: What One Thing to Advance Women in Law Will You Do?

Fishman Marketing: Ross Fishman, although located in Chicago, has a strong presence here in Vancouver. His web site is loaded with great advice and insights into the world of legal marketing.  Review his numerous case studies to gain insights into his thinking and work. Subscribe to his blog to stay current on his innovative ideas. https://www.fishmanmarketing.com/blog-2/

The Rainmakers Blog:  Stephen Fairley consistently receives accolades for perhaps the best legal marketing blog on the Internet.  A recent post was one of my favourites: 5 Ways to Attract your Ideal Client. Another was: How to Determine Which Social Media Networks Work Best for Your Firm. https://www.therainmakerblog.com 

(Published by the Canadian Bar Association in their publication Bartalk in the columns: PracticeTalk and Dave’s Tech Tips in December 2019. The post has been updated slightly.)

“Some changes are so slow, you don’t notice them, others are so fast, they don’t notice you.” —Ashleigh Brilliant

BC’s Innovative online system resolves thousands of legal disputes—usually without lawyers.

On July 13, 2016, the legal world changed in a small but significant way when an Online Dispute Resolution (ODR) Tribunal started taking its first cases in British Columbia, Canada. BC’s Civil Resolution Tribunal (CRT) drew on prior private law examples such as eBay and PayPal’s ODR resolution platform. EBay was the proof of concept of ODR: By 2010, it was handling over 60 million disputes each year, most of which were fully resolved by the parties without any additional human intervention.

This development came after academics, scholars, the United Nations, universities, governments, private industry, lawyers and nonlawyers long debated the potential of using the power, reach and resources of the internet to settle legal disputes. This was the first time government provided a mechanism for parties to settle a dispute in a totally online forum.

THE ORIGINS OF ODR

Colin Rule, who played a leading role in the creation of PayPal’s ODR platform, is one of two recipients of the 2020 inaugural Frank E.A. Sander Innovation in ADR Award from the ABA Center for Innovation and the ABA Section of Dispute Resolution. Rule has led the development and expansion of ODR since 1999, but over the past five years he has been a key driver behind international efforts to expand access to justice by integrating court ODR into the legal system.

Much of the work in the field of ODR is based, directly or indirectly, on Rule’s innovative thinking and work in this area while first at eBay, then Modria, an ODR provider, and latterly as vice president for ODR at Tyler Technologies, together with his colleagues’ work from the National Center for Technology & Dispute Resolution (http://odr.info) at the University of Massachusetts Amherst. 

There are two general types of ODR. One type focuses on using the algorithmic power of computers to help people resolve their issues. This branch uses computing power to help parties reach an optimized solution that both sides can accept, or it can help parties overcome obstacles and reach agreement. 

And per a 2013 Canadian Arbitration and Mediation Journal column, “Online Dispute Resolution: The Future of ADR,” written in conjunction with Rule and Dr. Frank Fowlie:

The second [type of ODR] focuses on using computers to facilitate human communication. Instead of having the computer processor analyze data and make recommendations, this branch uses information and communications technologies to assist the interaction between the parties, helping them to reach mutually acceptable solutions. … The computer is used to create a virtual meeting space, one specifically tailored to best meet the needs of the disputants.

This second type of ODR is what the CRT is patterned on.

IMPLEMENTATION OF THE CRT

Since its launch, the CRT’s jurisdiction has steadily expanded. On July 13, 2016, the system began accepting disputes involving owners and tenants of condominium properties and corporations. On June 1, 2017, its jurisdiction expanded to small claims (all disputes $5,000 and under, such as debt or damages, recovery of personal property, personal injury and specific performance of agreements involving personal property or services). On April 1, 2019, its jurisdiction was expanded again to include certain motor vehicle accident disputes. For instance, if the CRT determines that a person’s injury is minor, damages for pain and suffering are limited to $5,500.

Importantly, the CRT’s jurisdiction is not concurrent with the courts; it is exclusive—and the vast majority of CRT decisions are final and binding on the parties. Within its legal jurisdiction, a claimant has a very limited ability to move a dispute out of the CRT to the courts. Furthermore, there is limited ability to challenge the decision of the CRT; a party unhappy with the outcome can, in most cases, only apply for judicial review of the decision on a standard of patent unreasonableness. In small claims matters, a party may file a notice of objection, which results in a new process being started in the Provincial Court. However, a financial deposit may need to be made, and the Provincial Court may assess a penalty if the person objecting doesn’t receive a better outcome than the CRT decision.

THE CRT PROCESS

As a starting place, the CRT platform contains a Solution Explorer that includes legal information and self-help tools in such areas as buying and selling, housing, loans and debts, construction, employment, insurance and property, as well as general disputes. The platform then guides potential parties through a question-and-answer protocol to lead them to relevant legal information.

For example, assume someone had a prepaid purchase card (a gift card preloaded with a certain amount of money) and was charged a fee by a merchant for using the card. The Solution Explorer would guide the party to information that would inform them that, under British Columbia law, such a fee may not be charged, and explains to the party how to claim a refund by writing to Consumer Protection BC and filing a complaint.

If the nature of the complaint is such that a legal claim needs to be initiated, then the Solution Explorer provides online guides on how to file a claim. A case is initiated by completing the appropriate form from the “Make a Claim with the CRT” webpage. The CRT is designed to try to assist the parties to craft their own solution. If a solution cannot be reached by negotiation between the parties or facilitated by a CRT case manager, then a hearing can be held by the CRT. This hearing can take place by email, by electronic submissions, paper submissions or, in rare occasions, via an oral hearing by telephone, videoconference or in person. Evidence can be submitted, including expert evidence.

The CRT is certainly applying a different mindset to the process of civil dispute resolution––largely without lawyers. In proceedings before the CRT, the ability to be represented by a lawyer is curtailed.

THE ROLE OF ATTORNEYS

As of June 2020 [ED: the original article has earlier stats, this version has been updated], the CRT has handled 17,238 disputes—14,362 small claims and 2,701 strata property disputes. The system has closed 15,644 disputes, including 13,187 small claims disputes, and 2,333 strata disputes were closed and of those, 907 strata property disputes were determined by adjudication. There were much smaller numbers of motor vehicle disputes and society and cooperative association disputes, and 78 percent of participants would recommend the CRT to others, according to the Civil Resolution Tribunal’s April 2020 Participant Satisfaction Survey.

Albert Einstein once said: “A new type of thinking is essential if mankind is to survive and move to higher levels.” The CRT is certainly applying a different mindset to the process of civil dispute resolution—largely without lawyers. In proceedings before the CRT, the ability to be represented by a lawyer is curtailed.

In motor vehicle injury disputes, litigants can automatically be represented by a lawyer. However, in most other cases, parties need to ask the CRT for permission if they want to be represented by a lawyer. And, in all cases, if a party wants someone other than a lawyer to represent them, they must receive permission. There are exceptions for minors and persons with impaired mental capacity. At any time during the tribunal process, a case manager or tribunal member can restrict the participation of a person providing representation or assistance in the tribunal process.

Traditionally, lawyers have opposed changes to the adversarial method of dispute resolution. Lawyers can continue to oppose meaningful changes to the legal and justice system that would result in greater access to justice; however, they do so at their peril. They may just wake up one day and find that change happened, and that change did not include them. The example of the CRT is just one of those changes that is likely to expand and fundamentally change the process of dispute resolution. LP

(This article appeared originally in the Big Ideas Issue, Law Practice Magazine, July 1, 2020 (https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/2020/ja2020/ja20bilinsky/).

♫ And if it’s bad
Don’t let it get you down, you can take it..
Hold your head up, oh hold your head high… ♫

Music and Lyrics by Junod Etienne and Sean Price, recorded by Steppenwolf.

(Image by Gerd Altmann from Pixabay).

When one thinks of toxic environments, one doesn’t tend to think of law offices as falling into that category. Yet I get calls from partners, associates and staff alike who are having to cope with working in such situations.  In some offices matters are dire; the stress of working in these environments are taking their toll on the person’s health and well-being, on their careers and certainly on their home life as well as they can’t help but carry the effects home.  After a time some of these people reach the breaking point and leave. Others are not so fortunate and are looking for tips on how to cope with being in such a situation.

The first thing to remember if you are caught in such an office is that you cannot control other people’s behaviour; you can only control how you respond.  Passive-aggressiveness, destructive and negative comments, conniving politics, terrible leadership, partners that are insensitive to personal boundaries or worse are not things that are a reflection of who you are; you are simply caught in the toxic vortex.  So here is a collection of tips for coping in a toxic environment:

• You need to stay positive and upbeat. The person you are most able to influence is yourself so don’t allow the toxicity to drag you down.
• Learn from the experience. Every bad situation allows you to grow as an individual and take home lessons – even if those are about things that you would never repeat. Learn how to apply The Golden Rule – ie how to treat others as you yourself would wish to be treated – as it is a powerful guide to help you grow when you are in such a situation.
• Do the best that you can do. You want to preserve your integrity and your good name. It is no surprise that word gets around in the legal community and being able to cope in a bad environment only enhances your reputation, your work ethic and your character.
• Create a ‘thank you’ file. While it may perhaps be the thinnest file in the office, a collection of letters and cards that endorse the value of your work could be the most valuable file in the office. It will grow over time and leafing through the physical embodiment of good wishes and thanks is a personal validation of your own self-worth and assistance to others.
• Get a supportive network outside of the office. Having someone to talk to about the situation certainly helps and their advice and support can get you through some dark days.

Continue to search for a better workplace while keeping your shoulders squared and your spirit up. Keep looking for a more positive situation.  Remember that no matter what, continue to hold your head high.

What online resources are available if you find yourself in a toxic environment?  Here are a selection:

Workplace Bullying Institute “WBI is the first and only U.S. organization dedicated to the eradication of workplace bullying that combines help for individuals, research, books, public education, training for professionals-unions-employers, legislative advocacy, and consulting solutions for organizations.”  It was founded by Drs. Gary & Ruth Namie.  They state:

“Workplace Bullying is repeated, health-harming mistreatment of one or more persons (the targets) by one or more perpetrators that takes one or more of the following forms:

• Verbal abuse
• Offensive conduct/behaviors (including nonverbal) which are threatening, humiliating, or intimidating…”

This site has wonderful resources for people caught in these situations including an ‘action plan’ which includes the great piece of advice: “Have your escape route planned…

The World of Psychology Web site in the article “When Your Workplace is Toxic” has this bit of advice regarding having a personal renewal program in place.  They state:

“We must have a self-care protocol in place that we can employ as a daily guide, while being alert to rationalizations and excuses for not doing it. Not to have such a personal renewal program may court disaster for both our personal and professional lives. It is also, at its core, an act of profound disrespect for the gift of life we have been give.”

The Future of CIO website: in an article entitled “Five Characteristics of a Toxic Workplace” states:

“One of the most toxic characteristics of workplace, is that of management making decisions without the consideration of the people.”

It goes on and states:

“A lack of real support for employees can be an issue: Who do you go to if there’s a problem with your boss or someone in a senior role? Often, there’s an ‘elephant in the room’ that no-one wants to address until the problem begins to spiral. Unhelpful behavior that leads to general gossip, can very quickly create a toxic environment.” 

If you are a leader in a firm that is starting to show signs of toxicity, this website has another  good article that speaks about a 4 step methodology for analyzing, assessing, and redesigning the culture of an organization in a consistent manner: Corporate Culture Re-inventing: Is Hybrid Model the Best?

Lastly, when it comes time to craft your exit strategy from the toxic workplace, Forbes Magazine has an article online entitled “Five Critical Steps to Finding a Job Fast!” It lists such things to consider as fine tuning your LinkedIn profile as well as checking any publicly available information about yourself that may turn up on a Google search.

(Originally published by the Canadian Bar Association in their publication Bartalk in the columns: PracticeTalk and Dave’s Tech Tips in February 2014.)

♫ It’s time we stop, hey,
what’s that sound
Everybody look what’s going down… ♫
– Music and lyrics by Stephen Stills,
recorded by Buffalo Springfield.

There is something happening here. Traditional lawyer regulation “has not proven to foster innovation” and this in turn is seen as holding back innovations that could increase access to justice. For example, in 2018, The Board of Trustees of the State Bar of California (“Board”) received a Legal Market Landscape Report (bit.ly/bt1019p26-3) suggesting that “some of the rules and laws governing the legal profession may be hindering innovations that could expand the availability of legal services.” As a result, the Board appointed a Task Force on Access Through Innovation of Legal Services (“ATILS”) and assigned it to identify possible regulatory changes to remove barriers to innovation in the delivery of legal services by lawyers and others. ATILS was charged with balancing dual goals: consumer protection and increased access to legal services. They came up with 16 concept options for regulatory changes.

The report (bit.ly/bt1019p26-1) found that: “The slow evolution of the rules governing lawyers, including, but not limited to, lawyer advertising and solicitation, fee sharing/fee splitting, and UPL, are examples of regulatory reforms failing to keep pace with changes in the legal services market, including changes in the market driven by evolving innovation and technology and related consumer behaviour and preferences.”

But California is not alone.

Utah and Arizona are also looking at the issue of the regulation of lawyers and its effect on access to justice, in particular the issue of Alternative Business Structures (“ABSs”):

The Utah group – which was heavily influenced by the experience in England and Wales – said ABSs, backed by a new regulatory regime, would help foster innovation and promote other market forces “so as to increase access to and affordability of legal services.” (bit.ly/bt1019p26-2)

As of August 28, 2019, the final report of the Arizona task force has yet to be published, but it was reported that minutes of its meetings confirm that it supported the introduction of ABSs along with entity regulation.

Of course ABSs have been allowed in the UK since 2013.

Underlying these reports is the message that technology has been the biggest factor of change and innovation over the last while, yet lawyers are failing to realize the benefits of change and innovation that technology offers. Access to justice suffers as a result.

The Utah Bar, for their part, issued the report “Narrowing the Access-to-Justice Gap by Reimagining Regulation.” (bit.ly/bt1019p26-4)

Utah stated that eliminating or substantially relaxing the rule allowing lawyers and non-lawyers to share fees was “key to allowing lawyers to fully and comfortably participate in the technological revolution.” (bit.ly/bt1019p26-2)

Utah felt that they should encourage “non-traditional sources of legal services, including non-lawyers and technology companies, and allow them to test innovative legal service models and delivery systems through the use of a “regulatory sandbox” approach, which permits innovation to happen in designated areas while addressing risk and generating data to inform the regulatory process.” (bit.ly/bt1019p26-2)

We need to start the process of regulatory reforms to allow these changes to take place here; for without them, as we all know, you step out of line, the man come and take you away.

♫ You raise me up, so I can stand on mountains
You raise me up to walk on stormy seas
I am strong when I am on your shoulders
You raise me up to more than I can be…♫

Music and Lyrics by B. Graham, R. Lovland, recorded by Martin Hurkens.

What does it take to practice law successfully? That list of abilities would be as diverse as the spectrum of lawyers out in practice today. Many of us would wish for a photographic memory combined with an intellect that allows that large amount of data to be assimilated and processed. That is exactly what Haley Moss, a lawyer in Florida, does. Joseph Zumpano, the co-founder of the law firm Zumpano Patricios, that employs Haley Moss, said he believes Moss is the first “openly autistic” lawyer to be admitted to the Florida Bar. Moss gives his business an edge in complex areas of law, Zumpano says, because of her “extraordinary” capacity for analysis and information processing .

Of course, not every person with autism possesses a photographic memory or has a capacity for deep analysis. People with autism have a range of abilities and  challenges. Employers such as SAP, JPMorgan Chase, EY, Microsoft and others  recognize this diversity and are part of the Autism at Work program, which  seeks to take this range of abilities by employing over 160 colleagues in 13 countries.(https://www.sap.com/corporate/en/company/diversity/differently-abled.html)

According to StatsCan, 22% of Canadians have at least one disability, which represents 6.2 million people (2017). That is a huge pool of people that could play a role for many employers, law firms included, from being lawyers to acting in other careers.

There are more attorneys with autism than people realize, according to Shain Neumeier, an autistic lawyer from Massachusetts as reported in the ABA Journal.

The ABA Journal continues: “I think people are becoming more willing to be out of the closet because some of the stigma is gone. It’s not just a bunch of people who are sitting in corners banging their heads; we are fully functioning,” says Michael Gilberg, a special education and disability rights attorney in New York, who was diagnosed with Asperger’s syndrome when he was 18. He graduated from Elisabeth Haub School of Law at Pace University in 2007 and is admitted to practice in New York and Connecticut.

The goal would be for all individuals to be recognized for their strengths and abilities that they bring to a workplace, not just for how they are challenged.

“I want to see us being meaningfully included and have opportunities that are aligned with our skills,” Haley Moss stated, “as well as what we’re capable of.”

Employers, particularly law firms, who have a deep role to play by advocating for the rights of those with differing abilities and challenges, can also play a leading role in recognizing and employing individuals who have amazing attributes and strengths to build meaningful careers and help raise them up to be more than they could be…

The Journal of Vocational Rehabilitation in 2005 reported on a study that found that 92% of consumers felt more favourable toward those employers that hire individuals with disabilities. Furthermore, the study showed that people also had strong positive beliefs about the value and benefits of hiring people with disabilities, with 87% specifically agreeing that they would prefer to give their business to companies that hire individuals with disabilities.

AtWork outlines further benefits of hiring people with disabilities.  These include:

Improved productivity: Effective job matching fits the employee’s abilities to the employers’ needs. The right person in the right job makes everyone more productive.

Reduced turnover: Having trouble finding good employees? Many repetitive or entry-level positions are well suited to people with disabilities.

Improved morale: People with disabilities want to work and contribute. They are motivated and reliable coworkers who add value to any team. Their enthusiasm and positive attitudes are contagious – and great for morale.

Higher retention: People with disabilities are reliable and dependable workers, with some of the highest rates of retention of any employee group.

Low investment, high return: There is no additional cost to you, other than the employee’s wages.

Win-win situation for all: Hiring people with disabilities benefits the workers, the community and your company.

What resources are out there to assist you in employing people with disabilities?

CASE: The Canadian Association for Supported Employment, established in 1999, was initially an informal network of service providers and stakeholders committed to the full participation of persons with disabilities in the Canadian labour force. CASE is a national association of community-based service providers and stakeholders working towards the Employment Inclusion of people with disabilities. This association strives to promote full citizenship and personal capacity for persons with disabilities through the facilitation of increased labour market participation and outcomes. Through such workforce participation, CASE also promotes social inclusion for Canadians with disabilities.  Joining CASE signifies your organization’s role in being part of the national voice for employment inclusion.

CASE lists a number of supportive organizations that can assist in the role of employment inclusion in BC:

Family Works BC

AspectBC

Community Living BC

The Provincial Networking Group Inc.

Work BC 

Inclusion BC

There are real and tangible benefits to hiring those people with differing abilities and challenges. As lawyers we are justly concerned with rights and freedoms; I trust we are equally concerned with opportunities being equally available to all.

(originally published in BarTalk, a publication of the BC Branch of the Canadian Bar Association.)

 Attribution: Chantal Pare.

♫ Everybody thinks you’re the lamest
We all know you’re a fraud
Life can be so frustrating
I’m so glad you got caught…♫

                                                                            Music, Lyrics and recorded by: Hawk Nelson.

Fraud in the workplace cost Canadian businesses $3.2 billion, reported the CBC in 2011 (the last date I could find statistics). While lawyers have been aware of, and taken steps to prevent, fraud attempts by outsiders on their trust accounts for some time now, there is a largely unacknowledged vulnerability of fraud committed against law firms by employees. The sad truth about internal fraud is that people deny that there is a fraud problem in the first place or only react after a fraud is discovered.

Consider these internal fraud facts:

• “On the basis of the evidence it is likely that losses in any organisation and any area of expenditure will be at least 3%, probably near to 6% and possibly more than 10%” (PFK.com “The Financial Cost of Fraud, 2015).
• “25% of internal fraud cases result in losses of a million dollars on average” (Langlois Advocates – Lawyers, “Theft or Fraud by an Employee: Management Rights and Legal Action.”
• “Previous research suggests that fraud, like many crimes, is under-reported” (Statistics Canada, 2006; PricewaterhouseCoopers, 2005; Smith, 1999).
• “The more steps businesses take to control and uncover fraud, the greater their chances of detecting fraudulent activities and the better their ability to assess the effectiveness of their anti-fraud strat Thus, strategies for detecting and preventing fraud are key mechanisms in keeping the costs, direct and indirect, of fraud down” (PricewaterhouseCoopers, 2007).
• “The prospects of recovery of the proceeds of fraud are dim, with 65% of victim companies recovering 25% or less of the stolen funds. And many recover nothing.” (The True Cost of Fraud: Direct Costs, Tracy Coene in Insurance & Risk Management).
• ACFE in their 2018 Report to the Nations (A global study on occupational Fraud and Abuse being the largest global study on occupational fraud) looked at 2,690 real cases of occupational fraud from 125 countries over 23 major industry categories. They found:
  • The mean, or average, loss due to the frauds in their study was $2.75 million, which is an enormous amount when considering how much damage such a loss represents to most organizations.
  • The median loss for all cases in their study was $130,000. While 55% caused less than $200,000 in financial damage, more than one-fifth resulted in a loss of at least $1 million.

What are the steps you can take to reduce fraud?

Trust, but Verify: Trust your employees to do their jobs properly, but take steps to verify that this is in fact the case.

Establish Hiring Procedures: Check references of your final candidates. Let your candidates know that you will be doing this.

Set up Internal Controls: There are a number of well-established policies and procedures you can put into place now to reduce the opportunity for someone to commit a fraud.

Dual Signatures: While trust accounts require the signature of a practising lawyer, there is nothing that prevents you from adding a second signatory to both your general and trust accounts. Two sets of eye balls looking at a cheque is better than one.

Train Employees in Fraud Prevention: By having regular training on how to prevent and detect fraud, your law firm is sending the message on what behaviour is acceptable and what is not. Anti-fraud examiners state that employees are the “best possible fraud detectors.”

Conduct Regular Audits: “Internal auditing is an independent, objective assurance and consulting  activity designed to add value and improve an organization’s operations. It helps an organization accomplish its objectives by bringing a systematic, disciplined approach to evaluate and improve the effectiveness of risk management, control, and governance processes.” (Wikipedia)

Monitor Vacation Absences (or lack thereof): “Two classic fraud prevention techniques are mandatory vacations and periodic job rotations. Mandatory vacations of one week or more (consecutively) are helpful, because the employee cannot continuously monitor a fraud scheme while away. Job rotations are also effective at disrupting these schemes especially when the employees are not given advance notice” (Essentials of Corporate Fraud).

Hire Experts: Periodically hire an expert in detecting fraud to examine your policies and procedures and assist in your antifraud steps.

Check your bank statement for unusual activity and signatures. If someone has forged your signature, you must detect this and report this to your bank quickly.

There are a number of steps that you can take to ensure that you do not become a victim of internal fraud. However, if the worst should happen, then at least you can take some solace in the fact that you have established systems and procedures that should detect the fraud and ensure that the perpetrator is eventually caught.

Internal Fraud Resources:

The Association of Canadian Anti-Fraud Examiners (ACFE) has a Fraud Prevention Check Up in PDF format in both English and French. It recommends that you perform this check up in conjunction with an Anti-Fraud Examiner but the list provides a good overview of the steps you can take now to reduce fraud.

The Law Society of BC published “The Trust Accounting Handbook” that encapsulates the procedures and rules for operating a trust account. It also publishes a list of the Fraud Alerts to the profession.

PracticePro has an excellent resource that addresses several types of fraud.

RubinBrown LLP has a list of 30 internal control considerations in an article entitled “Focus on Law Firms: Managing Law Firm Fraud Risks – An Internal Control Checklist” (June, 2016).

The Association of Certified Fraud Examiners, Inc.,in an article entitled “Designing an Effective Anti-Fraud Training Program,” sets out the topics to cover in designing employee training to counter fraud.

The Canadian BankingAssociation,in an article entitled “Protecting Yourself from Cheque Fraud,” advises “Review your monthly bank statement or regularly check your transactions through online or telephone banking. If you see transactions you didn’t do, notify your bank immediately and they will investigate.”

Dave Slovin,in an article entitled “Blowing the whistle: a well-designed, accessible whistleblower hotline can be a powerful tool in the fight against fraud,” quotes Warren E. Buffett chairman of the board of Berkshire Hathaway, a global investment firm with 180,000 employees, who said after their recently installed hotline, “Berkshire would be more valuable today if I had put in a whistleblower line decades ago.” The issues raise dare usually not of a type discoverable by audit, but relate instead to personnel and business practices.

((originally published in BarTalk, a publication of the BC Branch of the Canadian Bar Association. This article has been updated for the purposes of republishing).