The Power of Perspectives

The Canadian Bar Association

Brandon Hastings

Legal Futures roundup: September 19, 2016

September 19 2016 19 September 2016

Inspired by the CBA Legal Futures report on Transforming the Delivery of Legal Services in Canada, here’s our biweekly round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

The United Kingdom’s Legal Services Board has released a report for legislative reform of the legal services industry in England and Wales. The report, among other things, recommends a shift from various regulators of legal activities to a single regulatory body. Currently, there are six legal activities that are reserved for barristers and solicitors, and regulated by a patchwork of regulators. Neil Rose expatiates on the issue, speaking on frustration with the apparent arbitrariness of these reserved areas.

Meanwhile, Andy Somerville writes on the wisdom of specialization in law firms, exploring whether is it more sensible for partners to develop their management skills, or for firms to hire-in business acumen. Perhaps a mix? Managing lawyers tend to be time-poor, and working on lawyers to develop business acumen can be an expensive proposition. By the same token, however, there is clearly value in having subject-matter expertise in the management-suite.

Closer to home, Jordan Furlong offers six takeaways from Norton Rose’s acquisition of Bull Housser in Vancouver, suggesting that the move adds to Vancouver’s appeal as “a hub between North America and the Asia-Pacific region” and giving it the upper hand over Calgary and Montreal in the contest to be Canada’s Second City to Toronto.

Malcolm Mercer writes on a recent CBA debate in which he participated, on whether lawyers ought to have a monopoly on delivering legal services. Mercer urges a nuanced understanding of the legal landscape, and of the advantages and drawbacks of vesting responsibility with each potential legal actor.

ProBono Students Canada is scaling-up a partnership with the Yukon Human Rights Commission. The initiative, which was piloted last year and is being rolled-out on a broader scale this year, has law students creating information circulars for public use.

With 75 per cent of BC’s lawyers practicing in BC, Victoria, and Surrey, access to justice in rural communities can be an issue. In a recent letter to the premiere, the Canadian Bar Association’s BC branch (CBABC) lobbies for loan-forgiveness on behalf of lawyers who work in rural communities. In the same letter, the tuition fees of British Columbia’s Law Schools are revealed -- with Thompson Rivers University leading the pack at $18,185.

Justice Robin Camp’s disciplinary hearing in front of the Canadian Judicial Council (CJC), only the 11th hearing since the council was founded in 1971, began on Tuesday September 6, 2016. The hearing is being held with respect to comments Justice Campbell made to a sexual assault complainant, which reportedly included, among others: “Some sex and pain sometimes go together … that’s not necessarily a bad thing;” and “she knew she was drunk … is not an onus on her to be more careful.” More detailed coverage of the hearing, from CBC here, and here, while Christie Blachford says in the National Post that part of Justice Camp’s failing was the he was appointed to a criminal courtroom, being totally unfamiliar with criminal law. That happens quite frequently, apparently, and former Alberta Justice Wachowich provides insight into the training process for new justices: “What they try to do is they try to wean them in, if I can use that expression, by giving them easier cases at the beginning so they can get used to the procedure, as well as being trained in the law.”

In a survey of 200 Canadian lawyers, 40 per cent were found to be “somewhat satisfied” or happier with legal process outsourcing. The survey found that the most satisfied were in-house counsel. Conducted by CorbinPartners and Team Virtual Outsourcing, the headline might also read “outsourcing firm finds 67 lawyers that are at least somewhat satisfied with outsourcing.”

In other Canadian Judicial Council (CJC) related news, the council has reportedly raised the question as to whether the CJC’s underfunding is unconstitutional. The CJC oversees 1,100 judges, and was created to “promote efficiency, uniformity and accountability and to improve the quality of judicial service in all superior courts.” The CJC says its $1.7M budget is insufficient, however, and asks for an additional $1.3M: “$700,000 to restore activities lost or delayed due to a 2014 cut to the CJC’s budget; $250,000 for staff to help with outreach and tech support, and in-house legal support; and $350,000 for new projects and programs to carry out its mandate to improve the quality of judicial service in Canadian courts.” Perhaps ironically, Dean Sossin of Osgoode Hall points out “the Constitution is an awkward mechanism to achieve [sustainable funding for the CJC], and recourse to litigation over these kinds of issues would reflect a dysfunctional state of affairs within our political and legal system, and [would be] justified only when core functions of judicial independence are in jeopardy.”

John Scofield of The Lawyers Weekly has an article on why arbitration may be preferred to recourse to the courts: the parties’ ability to tailor the process to their needs may prove beneficial through keeping details out of the public record, increasing speed and decreasing procedural complexity.

On September 12, Chevron Canada began its attempt to hide behind the corporate veil as a $9.51 billion judgment debtor. The original suit began 23 years ago, and respects 30,000 Ecuadorian natives whose health was harmed as a result of left-behind toxic waste.

 

Yves Faguy writes on smart contracts and blockchain, pointing out that the technology isn’t foolproof just yet, and though it works in theory, the human element (read: potential for fraud) might never be fully overcome. Blockchain, in case you’re wondering, is essentially the electronic equivalent of the Livery of Seisen: in theory, a public record of property ownership which is made immutable through the fact that it is witnessed by a large group of disinterested third parties.

Law school continues to be difficult and expensive. Doron Gold, social worker and former lawyer, writes that it would be beneficial for more law students to be aware of the facilities available to help them cope, including having recourse to programs established by their local bar associations, for which law students may also be eligible.

Aron Solomon and Jason Moyse of MaRs Legal X write on the increasing importance of defining legal information vs. legal advice as technology-enhanced legal services continue to proliferate. They note that whether LegalZoom, a major legal-technology company, has been providing legal advice (in contravention of legal profession regulation) or legal information has been at the centre of many lawsuits involving the company. The authors argue that sophisticated legal consumers do not need the protection of legislation when consuming legal services, and so, for that group, legislation around who may provide legal services is outmoded, protectionist, and serves to harm, rather that help, consumers.

Tim Wilbur, new editor of Canadian Lawyer, provides a comparison between the legal and journalism industries, stating that law is now at the point journalism was at 10 years ago - ready for a shake-up.

In Ontario, Chief justices have recognized a need for court-system reform. Similarly, David Sterns, new president of the Ontario Bar Association, has set his sights on legal reform (and specifically reform of the court system). In related news, calls are also being made for modernization of Canada’s immigration process

Rebecca Bromwich sounds a warning in the CBA National about the ‘buzz’ around legal technology, and nicely ties in some of the teachings of Sun Tzu. Bromwich says that “sometimes the best new ideas are very old ideas,” and this certainly echoes the thoughts of many leaders in the legal tech world. She goes on to say that the pith and substance of legal practice is the management of conflict between people, and that the best way forward is to focus on solving particular problems through whatever means are available, including technological intervention. Indeed, most of the current “legal tech” businesses are not technology-based businesses, but businesses which are technology-enabled.

In a letter from over 200 legal academics, the Investor-State Dispute Settlement (ISDS) clauses of the Trans Pacific Partnership (TPP) have once again come under fire. When we see ISDS complaints from the general public, the basic complaint tends to be that the ability of foreign countries to sue a signatory to the TPP violates domestic legislative freedom - essentially, private citizens don’t like that their government would sign a treaty that would give another country “teeth.” Recognizing that the whole point of a treaty is to harmonize the legal systems of sovereign nations, and enforcement mechanisms are often necessary, the concerns in the letter are more nuanced, tending to focus on the (lack of) procedural fairness of the ISDS process and a “vagueness” of the treaty provisions which would form the ‘cause of action’ for the ISDS process.

Brandon Hastings is an associate at MacLean Law in Vancouver, British Columbia, a civil roster mediator, a collaborative practitioner, and a director of the Immigrant Services Society of British Columbia (ISSofBC). Brandon holds a BBA in Entrepreneurial Leadership, has a background in technology, and sits on the CBABC’s court services committee

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