The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Legal marketplace

Has liberalization of the legal industry in England changed anything?

By Yves Faguy April 3, 2018 3 April 2018

Has liberalization of the legal industry in England changed anything?

Mark A. Cohen makes a case for splitting regulation of the practice of law (training, licensing, ethical responsibilities, and client obligations) away from the business of law (to promote competition and innovation):

The core tenets of legal practice—confidentiality, conflict avoidance, etc.—have changed little over time, even as new challenges arise. Lawyers are well-suited to regulate themselves.  But the business of delivering legal services in an increasingly corporatized, digitized, inter-connected, complex world requires outside regulators whose focus is on consumers, not lawyers. Regulation should encourage new delivery models, investment capital, and innovation that promote access and elevate legal buyer satisfaction. The legal industry has the resources to better serve consumers and society. Bifurcation of legal regulation will advance these important objectives and preserve the fundamental characteristics of legal practice.

He holds up the model in England and Wales as an example where a Solicitors Regulatory Authority oversees the business side of the industry, while practice matters are left to The Law Society.  This split happened when the Legal Services Act, 2007 fully came into force five years ago and introduced alternative business structures (ABS), which allows for non-lawyers in professional, management or ownership roles.

But in a recent post Malcolm Mercer takes a look at how the market for legal services in England has evolved since its liberalization five years ago, and proposes that Canadian law societies take more of a wait-and-see approach to re-regulation.

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Criminal law

The SCC interprets influence peddling broadly

By Yves Faguy March 23, 2018 23 March 2018

The SCC interprets influence peddling broadly

The Supreme Court dismissed Bruce Carson’s appeal, affirming his guilt on influence peddling charges in connection with his efforts to help a company sell water treatment systems to First Nations.  In an 8-1 ruling (Justice Suzanne Côté is the one dissenter), the top court noted that the former aide to then Prime Minister Stephen Harper admitted that he “was a person who had influence with the Government of Canada at the time…” The Criminal Code makes it a crime to sell influence “in connection with any matter of business relating to the government.” The Court wrote:

Simply showing that the accused accepted a benefit in exchange for promising to influence government does not suffice to make out the offence. Nevertheless, the phrase “any matter of business relating to the government” must be interpreted broadly. Reading the words of this phrase in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, a matter of business relates to the government if it depends on government action or could be facilitated by the government, given its mandate. Matters of business relating to the government include publicly funded commercial transactions for which the government could impose or amend terms and conditions that would favour one vendor over others. The phrase “any matter of business relating to the government” must not be restricted to matters of business that can be facilitated by government under its existing operational structure. The offence captures promises to exercise influence to change or expand government programs.

The trial judge had acquitted Carson on account of the fact that it was up to the First Nations – not the government – to decide on whether to make the purchase.

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Privacy

Cambridge Analytica fallout: How will GDPR be enforced?

By Yves Faguy March 23, 2018 23 March 2018

Cambridge Analytica fallout: How will GDPR be enforced?

Jessica Davies warns that in the aftermath of Cambridge Analytica’s harvesting scandal, businesses are going to have get wise quickly about making sure they will be compliant with the EU’s General Data Protection Regulation (GDPR) – coming into force in May.

The question on a lot of minds, up until now, has been how 28 different countries will enforce the regulation, which has extra-territorial reach.

Jess Geary also digs into the issue:

Post-GDPR, the data is back in the control of the consumer. As of May 25th, 2018, consumers will be able to request what data is being held about them and they will have the right to be forgotten and, more importantly, get greater clarity on transparency on how their data is being used. The emphasis is now on the brands to negotiate this new opt-in world successfully – or they face a fine of €20m or 4% of global turnover.

This increasing scrutiny from consumers is only going to get worse, especially with more and more high profile data breaches (I am confident there will be more). So how do businesses and brands tackle this growing scepticism from consumers, in an age where data is becoming more powerful and valuable than ever?

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Privacy

Cambridge Analytica: The legal implications for Facebook and everyone else

By Yves Faguy March 21, 2018 21 March 2018

Cambridge Analytica: The legal implications for Facebook and everyone else

Facebook is clearly in trouble over allegations that the social media giant has been derelict in its duty to protect its users’ privacy, in the wake of revelations that the British firm Cambridge Analytica harvested information, without permission from the Facebook profiles of more than 50 million of its users.  Facebook is now facing multiple investigations in several countries -- never mind the lawsuits piling in.

The US Federal Trade Commission looking into whether Facebook violated its 2011 settlement by allowing the misuse of user data ostensibly collected for academic research.

In the UK, Facebook CEO Mark Zuckerberg has been personally summoned to appear before a House of Commons committee to give testimony on the latest developments in the matter.

The EU is hinting, too, that major fines may be on the way.

And now the Office of the Privacy Commissioner of Canada is now launching its own investigation.

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Conflicts of laws

The new censors

By Yves Faguy March 14, 2018 14 March 2018

The new censors

Liberal democracies are wrestling with a crisis of confidence in freedom of speech.

It’s a sentiment that has been tracking alongside other worries – about erosions to the rule of law, reports of declines in civil liberties in many parts of the world, and distress over the torrent of invective that social media has unleashed. Civility is out the window. Women and Muslims are disproportionately the targets of trolls and haters. The loudest individuals will hijack debate and intimidate others into silence.

Caught in middle of all this are the new arbiters of acceptable conduct online – principally Facebook, Twitter, and Google.

It’s a role they would prefer not to have, after years of holding the internet up as the modern public square where views can be freely exchanged.

Facebook has always sold itself as a neutral platform for information. But the social media giant has been caught wrong-footed in a number of recent instances. In the lead-up to the 2016 U.S. election, it was accused of tweaking its algorithm to bury conservative viewpoints, then later of enabling the spread of right-wing misinformation. It recently announced plans to overhaul its newsfeed by letting users rank the credibility of news sources. Meanwhile it is accused of promoting Western-centric bias on its trending topics.

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