The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Family law

A code of conduct for child-focused family lawyers

By Yves Faguy April 18, 2018 18 April 2018

A code of conduct for child-focused family lawyers

Nicholas Bala, Patricia Hebert and Rachel Birnbaum, in a recently published Canadian Bar Review article, make the case for developing a proper code of conduct for family lawyers – one that would more clearly articulate their obligations towards the children of their parent clients.  In B.C., John-Paul Boyd and others have also been working to develop such guidelines. The authors take the view that too much emphasis on zealous representation in the current system, while appropriate in criminal matters and even in some civil cases, is usually inappropriate in family disputes. And more often than not it can be detrimental to their interests:

Clients need to be reminded that “divorce is not a zero sum game;” they may both be better off with a fair, nuanced settlement that takes account of their circumstances than a regime imposed by a court. This may be most apparent in regard to economic issues, where there may be tax advantages that can only be achieved through negotiation and a joint filing. Although sometimes less obvious to separated parents, the plans that they jointly make are more likely to meet their circumstances and needs than ones made for them by a judge; separated parents and their children are usually better off if they agree to a substantial sharing of responsibilities and time with the children than if one parent has sole care and responsibility.

The authors also discuss the implications for research in the field:

Little is known about how family lawyers in Canada view their role and professional responsibilities, what type of advice they give their clients about parenting or settlement, and how they actually manage their relationships with their clients and other lawyers. More research needs to  be done on how family lawyers in Canada perceive their roles and actually conduct their practices.

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The Pitch 2018

Getting to know The Pitch finalists: Evichat

By Yves Faguy April 17, 2018 17 April 2018

 

As part of a weekly series leading up to The Pitch 2018, the legal innovation startup competition put on by the Canadian Bar Association and Law Made in partnership with LexisNexis, we’re publishing interviews with the five selected finalists to get to know them better.  This week’s Q&A is with Puneet Tiwari (featured in the above video), CEO and co-founder of Evichat, which offers a virtual legal platform dedicated to improving access to justice for regular people.

CBA National: What are the origins of Evichat?

Puneet Tiwari : After law school one of my first summer gigs was working for Shelby Austin at ATD Legal Services, before it was purchased by Deloitte. That was my first exposure to e-discovery. I thought, “Wow, there’s a huge industry here that I didn’t even know about.” After, I articled at a very small firm in the West End of Toronto and then I was hired on. There I slowly realized that almost every single client was bringing me some kind of evidence on their mobile devices — they were sending me screenshots of text messages, or forwarding me 20 emails on a Sunday night, because their boss was harassing them or whatnot. It was just you know data from their mobile phones. I thought to myself, “there has to be a better way to get this.” One screenshot is manageable, but when you get to 20 screenshots, it no longer is. So I tried to look for a solution online that I could pay for, but couldn’t find one. And then I got together with my co-founder who’s a Waterloo engineer. I pitched the idea to him and he said he could build this. And here we are.

N: And so Evichat collects all types of mobile data?

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Division of powers

Kinder Morgan: Democracy and rule of law at work

By Yves Faguy April 17, 2018 17 April 2018

Kinder Morgan: Democracy and rule of law at work

Part of the plan to get the back on track the promise from the Trudeau government that it will introduce legislation that reasserts federal authority over the Trans Mountain project, in addition to backstopping the project with some financial help.  Andrew Coyne is relieved that a better-late-than-never mix of measures holds some promise to get the project back on track. Chantal Hébert worries that the federal government will soon find itself having to defend lawsuits on two fronts.  The first comes from BC (and possibly supported by Quebec) on the province’s constitutional power to regulate the environment on its territory versus Ottawa’s power to carry out infrastructure projects in the strategic national interest.  The second is the threat of legal action from Manitoba and Saskatchewan that would challenge the federal government’s carbon tax plans.

Before the Sunday Summit between Trudeau, Alberta Premier Rachel Notley and B.C. Premier John Horgan, David Moscrop wrote offered up a useful reminder that the “political intractability” surrounding the Kinder Morgan crisis is – in spite of what some commentators are peddling – is really part of Canada’s slow and plodding democratic process:

What we’re seeing with the Kinder Morgan Trans Mountain pipeline debate is democracy, federalism, and the rule of law at work: a divided country working out their opinions on the matter, split jurisdiction actors pursuing their interests, responsive governments keeping their promises, political and legal battles across several sites of licit contestation—and, to boot, a market response of potentially pulling the plug on the project as shareholders vote with their confidence and their dollars.

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National Volunteer Week

The value of volunteering

By Yves Faguy April 16, 2018 16 April 2018

The value of volunteering

 

In the spirit of National Volunteer Week, CBA National will be profiling outstanding CBA members who have made a difference.  To set the stage we caught up with CBA Vice-President Ray Adlington of McInnes Cooper in Halifax to talk about what volunteering has taught him, the impact it can have on a lawyer’s career and community and how to best get involved. 

CBA National: What have you learned from giving your time to help the profession and interacting with other volunteers?

Ray Adlington: Mostly how much we as lawyers have in common in terms of our intrinsic motivators. The majority of lawyers get into this profession because they want to serve others. We all have achievement-related goals that we want out of our careers. And all of us want to be good family members, whatever that may mean in terms of what stage your family and you happen to be at. In terms of common challenges, we face multiple demands from different clients. If you’re working for a single corporation or you’re a government lawyer then you’re facing challenges from multiple departments. We’re juggling all that in our professional lives and all of that is subject to ethical boundaries that those with whom we are working don’t always understand. The other insight I have gained is how challenging it is, even today, for women, lawyers of colour and members of the LGBT2-IS communities, to find their place in the profession given the existing pressures on them to conform. They face a particular challenge in remaining authentic to themselves. 

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Privacy

Regulating Facebook to make it an information fiduciary

By Yves Faguy April 12, 2018 12 April 2018

Regulating Facebook to make it an information fiduciary

 

 

If anything, Mark Zuckerberg’s testimony before Congress this week has succeeded in kicking off a debate about how to go about regulating companies like Facebook has begun, even though it is not entirely clear yet to lawmakers what, exactly, they think requires their intervention.

In fact, they seem more inclined to ask Facebook how it thinks it should be regulated, in large part because it’s dawning on everyone that Facebook’s business isn’t always easily described – some would call it a shape shifter. Which is a fair description when one considers it is at once a media company, a business that trades in personal data or a tech platform.

Ultimately though, what matters is that Facebook makes money off people’s personal data, and so the real issue is, how do we get companies like it to handle that data responsibly? Here’s one interesting suggestion from Jack M. Balkin who raises some interesting questions at the intersection of personal data use and artificial intelligence. He proposes that lawmakers ensure that online service providers become “information fiduciaries” vis-à-vis their customers, clients, and end users:

We provide lots of information about ourselves — some of it quite sensitive — to people and organizations who owe us fiduciary duties or duties of confidentiality. And when we provide this information, we have, and should have, a reasonable expectation that they will respect our privacy. We have a reasonable expectation that disclosing this information to them, or allowing them to collect it from us, is not the same as making the information available to the public generally. We have a reasonable expectation, in other words, that people and organizations who owe duties of trust and confidence to us will not betray us. Indeed, the law creates and recognizes relationships of trust and confidence precisely because it wants people to have reasonable expectations of privacy in certain relationships.

To some degree, the coming into force of the EU’s General Data Protection Regulation (GDPR) is a step in that direction by forcing companies through corporate data governance to more take better care of people’s data. Balkin, however, recognizes the inherent limits, however to this solution:

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