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The Canadian Bar Association
CCCA Conference

Vacuums and crickets: The ultimate in-house counsel

By Kim Covert April 30, 2018 30 April 2018

Vacuums and crickets: The ultimate in-house counsel

 

How is the ultimate in-house counsel like a Dyson vacuum cleaner?

In both cases, they’re not designed for artistic value, function trumps form. They’re built to do a certain job to a certain standard. And perhaps in both cases, those standards keep changing as technology evolves.

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CCCA Conference

I Am Jane Doe: Ethics and morality for the in-house counsel

By Kim Covert April 30, 2018 30 April 2018

I Am Jane Doe: Ethics and morality for the in-house counsel

 

It’s a lawyer’s job to advocate for clients. But what can or should a lawyer do when the clients they’re representing cross moral or ethical – if not strictly legal – lines? It’s a question we’re used to hearing criminal defence counsel answer; we’re less used to the idea of in-house counsel taking it on.

But that was the topic of discussion Sunday night at the opening of this year’s CCCA conference in Toronto. The conference, titled Beyond Borders, certainly pushed the boundaries of what’s expected at a CCCA conference by screening the documentary I Am Jane Doe, which follows the successive cases brought against Backpage.com by young sex trafficking victims whose bodies had been sold on the company’s web pages.

 

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The Pitch 2018

Getting to know The Pitch finalists: PatentBot

By Yves Faguy April 30, 2018 30 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 Valentin Pivovarov​ (featured in the above video), managing director of PatentBot, a legal chatbot that helps users register their trademarks.

CBA National: What are the origins of PatentBot?

Valentin Pivovarov: The idea came from our BDO Artem Afian and CEO Nataly Vladimirova. We saw that the procedure of trademark registration – which is quite similar in most countries – could be disrupted and this market. So our team created chatbots because it’s simple to create them, and easier than to build a full website. We started to build our bots in late May. Once we built a better version of PatentBot, we posted about it on Facebook and we got 800 customers in one day.  It was really impressive for me, because we had no marketing, and no advertising.

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The practice

Firm foundations: A look at best hiring practices

By Ann Macaulay April 27, 2018 27 April 2018

Firm foundations: A look at best hiring practices

 

Building a strong law firm is an ongoing challenge—not only when it comes to hiring the best people but, more importantly, keeping them. Fortunately, hiring experts say there’s plenty that can be done to cultivate a winning team.

The legal market “is showing confidence by hiring new lawyers,” says Christopher Sweeney, CEO of ZSA in Toronto, though he adds that firms are still being cautious in their hiring of both lawyers and support staff. Hiring activity this year should remain steady, according to The Robert Half 2018 Salary Guide for Legal Professionals, as “attrition rates at law firms and corporate legal departments continue to rise.”

There is a strong demand for professionals with backgrounds in high-growth specialty areas and more than three years of experience. There is also rising demand for tech-savvy support staff, as law firms hire paralegals to help meet the need to provide quality services at lower billing rates.

Behavioural interviewing is a growing trend that is useful for law firms that want to ensure they’re attracting and hiring the right people, says Warren Smith, Managing Partner at The Counsel Network in Vancouver.

Building a strong law firm is an ongoing challenge—not only when it comes to hiring the best people but, more importantly, keeping them. Fortunately, hiring experts say there’s plenty that can be done to cultivate a winning team.

The legal market “is showing confidence by hiring new lawyers,” says Christopher Sweeney, CEO of ZSA in Toronto, though he adds that firms are still being cautious in their hiring of both lawyers and support staff. Hiring activity this year should remain steady, according to The Robert Half 2018 Salary Guide for Legal Professionals, as “attrition rates at law firms and corporate legal departments continue to rise.”

There is a strong demand for professionals with backgrounds in high-growth specialty areas and more than three years of experience. There is also rising demand for tech-savvy support staff, as law firms hire paralegals to help meet the need to provide quality services at lower billing rates.

Behavioural interviewing is a growing trend that is useful for law firms that want to ensure they’re attracting and hiring the right people, says Warren Smith, Managing Partner at The Counsel Network in Vancouver.

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Mental health: A factor in sentencing?

By Justin Ling April 27, 2018 27 April 2018

Mental health: A factor in sentencing?

A new bill, if passed, will require the courts to take into account offender’s mental health status before sentencing.

Bill C-375 comes before the House of Commons justice committee today for the first time, as MPs seem set to push ahead on the bill.

At present, pre-sentencing reports only include the offender's "age, maturity, character, behaviour, attitude and willingness to make amends," as required in the Criminal Code, as well as a report on the offender's previous criminal and rehabilitative history.

What’s the issue? According to the federal prisons watchdog, more than one-in-ten federal inmates reported mental health issues — although there is some data to indicate that number may be significantly higher.

The watchdog has for years recommended new measures to divert offenders with mental health issues away from prisons, and into treatment, given that Correctional Services Canada does not have the capacity or speciality to handle the complex mental health needs of these inmates.

What does C-375 do? The bill is relatively straightforward. It requires that the report include details of “any mental disorder from which the offender suffers as well as any mental health care programs available to them.”

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Access to justice

How an adversarial system can adapt to the rise of self-represented litigants

By Yves Faguy April 26, 2018 26 April 2018

How an adversarial system can adapt to the rise of self-represented litigants

In a recent Canadian Bar Review article, Jennifer A. Leitch notes an uptick in members of the traditional middle class joining the ranks of self-represented litigants. With time these litigants -- “not otherwise marginalized within society” -- are likely to take a more critical view of the legal profession’s value. Leitch also discusses how our adversarial system of justice is being forced to evolve as a result of the extraordinary growth of self-representation:

This approach to truth-seeking in an adversarial system is problematic due to the fact that the truth-finding process is often idealized but not always functional. The reality is that the adversarial process tends to ignore inequalities within the system and between the parties.

These inequalities may stem from a lack of resources (e.g., monetary) or a discrepancy in skills or experience such that one party is disadvantaged in terms of being able to investigate and present their best case and test the opposing party’s case. The result is that inequalities between the parties leave the truth-finding mechanism open to manipulation and this serves to undermine the objectives of the system as a whole. One example in this regard is cross- examination. Notwithstanding that cross-examination is often touted as an essential component of the truth-finding process in an adversarial system, the benefits of cross-examinations may also be subverted through rhetorical manipulation and imbalances in lawyers’ resources and/or skills. This further helps to discredit “opposing testimony known to be truthful.” At best, cross-examinations may discover and reveal untruths, but may be less effective at discerning the truth. At worst, the process of cross-examination reflects an affront to the dignity of those being cross-examined. The consequence of this manifestation of adversarialism is that the legal system becomes “more and more removed from the substantive justice concerns of ordinary people.”

Interestingly, Leitch suggests it might be time to accept SRLs as a normal feature of our modern civil justice system, which would require rethinking the code of conduct rules around the legal profession’s engagement with SRLs, possibly borrowing from inquisitorial norms, and redefining the responsibilities of lawyers toward them.

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CBA influence

Proceeds of Crime Act: Leave privilege out of it

By Kim Covert April 26, 2018 26 April 2018

 

Money laundering and terrorist financing is on the minds of both policy-makers and regulators this spring as the federal government carries out a statutory review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and the Federation of Law Societies of Canada proposes amendments to its Model Rules dealing with the subject.

The CBA has a long history of advocacy on the issue: it was involved in the development of the first proceeds of crime legislation in Canada and has commented since on proposed legislative and regulatory changes, always asserting that the laws must protect solicitor-client privilege. The CBA was an intervenor in Canada (Attorney General) v Federation of Law Societies of Canada, in which the Supreme Court confirmed that the proceeds of crime legislation cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes.

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The Supreme Court

Reactions to the Comeau "free the beer" ruling

By Yves Faguy April 25, 2018 25 April 2018

Reactions to the Comeau "free the beer" ruling

Predictably, the Supreme Court’s ruling in Comeau has been greeted with a good measure of disappointment. Emmett Macfarlane was among the first to set the tone:

It’s the pitch-perfect case for why judicial deference to a legislature can still be inappropriately political, even activist. And as a result of this politicized timidity, we get a resounding absurdity. As economist Mike Moffatt tweeted, “With today’s SCC decision, there are fewer trade barriers for Ontario companies to sell to Michigan than to Quebec. This is a problem.”

It’s an absurdity of constitutional interpretation that the Court routinely allows in the context of federalism but would never countenance in other areas of law. But mostly, it’s just absurd.

Asher Honickman calls the unanimous ruling “bizarre:”

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The Pitch 2018

Getting to know The Pitch finalists: Digitory Legal

By Yves Faguy April 24, 2018 24 April 2018

<p> <iframe allow="autoplay; encrypted-media" allowfullscreen="" frameborder="0" height="315" src="https://www.youtube.com/embed/Yd0Nywz3lfo" width="560"></iframe></p> <p> &nbsp;</p> <p> As part of a weekly series leading up to <a href="http://www.cbapd.org/details_en.aspx?id=NA_pitch18">The Pitch 2018</a>, the legal innovation startup competition put on by the Canadian Bar Association and <a href="https://lawmade.com/">Law Made</a> in partnership with <a href="https://www.lexisnexis.ca/en-ca/home.page">LexisNexis</a>, we&rsquo;re publishing interviews with the five selected finalists to get to know them better.&nbsp; This week&rsquo;s Q&amp;A is with Catherine Krow (featured in the above video), CEO and founder of Digitory Legal, a cost analytics and management platform for law firms and corporate legal departments.</p> <p> &nbsp;</p> <p> <strong>CBA National: What are the origins of Digitory Legal?</strong></p> <p> <strong>Catherine Krow :</strong> Practising as a litigation lawyer, I realized that this profession &mdash; this industry &mdash; is evolving. And to succeed in this market I really believed that law firms would need to start examining how they do things, and adopt new technology and really make some changes to better meet the business needs of their clients. I found this exciting and saw a chance to do something new and different and focus less on the practice of law and more on the business of law.</p> <p> <strong>N: Explain what Digitory Legal does.</strong></p>

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CBA influence

Amendments to Bill C-45 good, but more needed

By Kim Covert April 24, 2018 24 April 2018

 

Bill C-45, the Cannabis Act, set to become law this summer, is making its slow way through the approvals process, arriving in mid-April at the Senate Committee on Legal and Constitutional Affairs.

The CBA made a submission on the bill earlier in the process. For this Senate committee hearing the Criminal Justice Section sent a letter acknowledging that we generally support amendments made to the bill in the House, but emphasizing that the CBA still has serious concerns.

Amendments to the bill since our submission last fall include removing the height-restriction for home-grown plants, setting $200 as the maximum fine and specifying that probation is not to be imposed for ticketing offences, and adding certain immunities from prosecution for possession offences in the context of medical emergencies.

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Trade

Trade and national security risks

By Doug Beazley April 23, 2018 23 April 2018

Trade and national security risks

 

It’s a measure of just how unsettled things have gotten in the realm of international trade law commentary: the experts have started quoting Frank Zappa.

A quip attributed to the late gonzo rock star — “You can't be a real country unless you have a beer and an airline” — has been making the rounds in emails exchanged by trade lawyers. It’s a gag, of course, but it also reads as a better-phrased version of the justification U.S. President Donald Trump offered for his decision to cite a threat to national security to justify massive new tariffs on imports of steel and aluminium.

“Our steel industry is in bad shape,” Trump tweeted on March 2, before mashing the all-caps key. “IF YOU DON’T HAVE STEEL, YOU DON’T HAVE A COUNTRY!”

Trump has been president of the United States for over a year now, and in that time he has trampled any number of the political norms that serve as the unwritten laws of western democracy — in how he approaches party politics, gender and race relations, diplomacy and the rule of law, to list just the obvious examples.

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Legal marketplace

Another English firm goes public

By Yves Faguy April 23, 2018 23 April 2018

Another English firm goes public

Rosenblatt Solicitors has just announced its intentions to go public. It would be the fourth English law firm to do so since the liberalization of the market for legal services in England and Wales five years ago. The other three are Gately, Keystone and Gordon Dadds.  

According to Rosenblatt chief executive Nicola Foulston, the principal reason is to grow its dispute resolution practice in London and  “to take advantage of the disruption in the UK legal marketplace.”

Matt Byrne at The Lawyer notes that the reasons for going public can vary from one firm to the next, whether it is to attract a different kind of talent or fund growth through acquisitions. And though firms have been shy about making jumping in the fray, we can expect to see more law firm IPOs in the coming months:

Inevitably, there will be speculation about which firm will next go public. Personal injury giant Irwin Mitchell has long been seen as a candidate, while brand-savvy Mishcon de Reya is said in some circles to have at least considered an IPO last year. Highly profitable litigation boutique Stewarts could also make sense.

What is notable with the trio of deals so far in the UK is that the firms have different reasons for going public, highlighting the fact that each is a different type of firm. And while Gateley, which floated in 2015, is at the more traditional end of the market (IPO notwithstanding), the latter two deals underline the extent to which the market is reshaping. Indeed, it is the shape of the new breed of firms that might offer clues as to where the next IPO will come from.

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