The Power of Perspectives

The Canadian Bar Association
The Pitch 2018

Getting to know The Pitch finalists: Founded

By Yves Faguy April 5, 2018 5 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 Shane Murphy (pictured above), co-founder and CLO of Founded, an outfit that helps lawyers and entrepreneurs automate the legal needs of growing businesses.

CBA National: What are the origins of Founded?

Shane Murphy: The whole idea of Founded came up when my co-founder [and CTO] Travis [Houlette] was selling his business to Yahoo in a fairly large transaction, back when I was practising law. Although I wasn’t involved in any way in that transaction, Travis was my friend and he was always calling me and saying, “What is wrong with the legal industry? Why is it so devoid of technology? And why is my experience as a client so antiquated, even though I’m hiring top tier lawyers?” So we started talking about how technology could be used to give clients a better experience when they need legal services. That was the genesis of it.

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Justice

Automating justice and public confidence in AI

By Yves Faguy April 5, 2018 5 April 2018

Automating justice and public confidence in AI

Bob Tarantino weighs in on the topic of our latest cover story on using predictive technology to improve our justice system. He raises an obvious but fundamental question: Who gets to say whether the justice system is fair?

Whether and when we deploy AI in the civil and criminal justice systems are questions that should be answered only after taking into account the views of the people who would be subject to those decisions. The answer to the question of judicial AI doesn’t belong to judges or lawyers, or at least not only to them — it belongs, in large part, to the public. Maintaining public confidence in the institution of the judiciary is a paramount concern for any liberal democratic society. If the courts are creaking under the strain of too many demands, if resolutions to disputes are hobbled by lengthy delays and exorbitant costs, we should be open to the possibility of using AI and algorithms to optimize judicial resources. If and to the extent we can preserve or enhance confidence in the administration of justice through the use of AI, policy-makers should be prepared to do so.

Do read the whole thing.

 

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The practice

Finding good financial advice

By James Careless April 4, 2018 4 April 2018

Finding good financial advice

People go to law school to become lawyers, not small business owners. But that’s exactly what those who establish their own law firms become, with all the financial responsibility that entails.

“Most attorneys that go into solo or small practice don’t have a background or formal education in financial management,” said Heidi Alexander, Director of the Massachusetts Law Office Management Assistance Program. Many attorneys in Canada and the U.S. “would prefer to just avoid finances altogether,” she says, but knowing how to manage them is “absolutely essential in order to run a successful solo or small law practice.”

Fortunately, there are many ways to build your financial knowledge and get the advice you need to succeed in business.

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CBA influence

CBA: Why we need ADR training in all law schools

By Kim Covert April 4, 2018 4 April 2018

 

In a legal environment where most cases settle before they ever reach trial, being able to facilitate the reaching of those settlements is a valuable skill.

That’s why the CBA has called on law societies and law schools across the country to recognize the importance of mandatory training in alternative dispute resolution.

A 2016 CBA resolution says that since dispute resolution skills are a foundation of being an effective advocate, all graduating law students and bar admission students should be taught the spectrum of dispute resolution options.

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Privacy

GDPR and the art of getting people to consent

By Yves Faguy April 3, 2018 3 April 2018

GDPR and the art of getting people to consent

 

The new EU General Data Protection Regulation (GDPR), coming into force next month, is meant to enable consumers to see, limit and control how companies collect and process their personal data. There are plenty of questions out there about how effective European authorities will be in enforcing rules that have extra-territorial reach. But Richard Stallman doubts that the GDPR will help all that much for another reason:

The GDPR makes much of requiring users (in some cases) to give consent for the collection of their data, but that doesn’t do much good. System designers have become expert at manufacturing consent (to repurpose Noam Chomsky’s phrase). Most users consent to a site’s terms without reading them; a company that required users to trade their first-born child got consent from plenty of users. Then again, when a system is crucial for modern life, like buses and trains, users ignore the terms because refusal of consent is too painful to consider.

To restore privacy, we must stop surveillance before it even asks for consent.

He wants our laws to go further by requiring that systems online be designed in such a way that they do not collect data.

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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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CBA influence

Income sprinkling, income splitting, and passive investments

By Kim Covert April 3, 2018 3 April 2018

 

No one is ever going to suggest that tax law is simple enough for average individuals to wrap their heads around. But the complexities in proposed changes to the “tax on split income” provisions of the Income Tax Act will go “beyond the capability of business owners and generalist advisors to comprehend and apply,” says a submission from the Joint Committee on Taxation of the Canadian Bar Association and Chartered Professional Accountants of Canada.

The Committee commends the Finance Department for the improvements made to the draft TOSI legislation introduced in July, 2017, but note that serious technical and practical issues remain.

Before enumerating a number of specific technical concerns with the proposals, the Committee noted a couple of areas where over-reach and complexity ran the risk of causing unintended consequences.

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Criminal justice

Reforms to Canada's criminal justice system proposed

By Justin Ling March 29, 2018 29 March 2018

Reforms to Canada's criminal justice system proposed

Justice Minister Jody Wilson-Raybould has introduced new measures to streamline the criminal justice system and to finally follow through on pledges to clean up the Criminal Code and reduce court delays. Reactions, however, have already been mixed.

The centrepiece of the new legislation, Bill C-75, which is sure to spark a significant amount of debate among defence lawyers in Canada, is a set of a new rules on when preliminary inquiries can be used.

The changes would make it so that only an accused facing a crime which could carry a penalty of life in prison would have access to a preliminary inquiry. Even then, under the new rules, the inquiry judge would have the power to limit issues and witnesses introduced.

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Media

Has the internet made publication bans obsolete?

By Brooke MacDonald March 29, 2018 29 March 2018

Has the internet made publication bans obsolete?

Two people were killed. Both were under the age of 18. The CBC wrote two articles on the incident, naming the victims. The Crown applied for and received a publication ban on the victims’ names, because they were minors. Should the CBC be required to take down the articles or redact the names of the victims?

According to the Supreme Court of Canada, the answer is no. In the recent decision of R v Canadian Broadcasting Corp., which clarified the legal test for issuing a mandatory interlocutory injunction, Canada’s top court upheld the lower court decision which rejected a broad interpretation of “publish” in the Criminal Code so as to encompass web-based articles posted prior to the ban. 

While the full merits of whether the articles violated the ban were not decided (for the purpose of this proceeding the chambers judge needed only assess the prima facie case for criminal contempt of court), this case raises a number of issues about the way online reporting and sharing of information fits within our current legal system.

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CBA influence

CBA has serious concerns with proposed impaired driving bill

By Kim Covert March 28, 2018 28 March 2018

 

The CBA appeared before the Senate Committee on Legal and Constitutional Affairs in late February to reiterate its concerns with a bill that it says will introduce uncertainty into the criminal law and carry serious repercussions for permanent residents and foreign nationals.

The CBA supports the overall aim of the bill, which contains amendments to better address both drug and alcohol impaired driving, but urges “careful consideration of our concerns and recommendations about Bill C-46.” 

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CBA influence

Bill C-49 sends mixed messages to foreign investors

By Kim Covert March 27, 2018 27 March 2018

 

You can attract flies with honey, but if you stand there swatting at them they might not stick around.

That’s essentially the message from the CBA’s Air and Space Law Section in response to Bill C-49, which would increase foreign ownership limits of air carriers.

As it stands, in order to qualify as “Canadian” and operate a domestic or international air service, foreign ownership and de facto control of the corporation is limited to 25 per cent of the voting interest.

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Corporate counsel

Conquering challenging clients

By Jim Middlemiss March 27, 2018 27 March 2018

Conquering challenging clients

Every in-house counsel has a war story to tell about a challenging client they had to manage at some point in their career.

Take Maura Lendon, Vice-President, Chief General Counsel and Corporate Secretary at Primero Mining Corp. in Toronto (pictured above). At one public company she worked at, it was her call as to when the blackout period was in place, which prohibits insiders from trading shares in a company. A senior executive who wanted to buy shares took issue with her position and challenged her legal advice. She had to explain why the blackout period was in play. “You are the guardian of the integrity, ethics and legal compliance of the organization and it’s important not to be shy where those issues are at stake,” she says. She stood steadfast, yet he persisted and the debate continued.

Finally, she made it clear to him that the record would reflect her advice, and if there was an inquiry, that’s the documentation the securities regulator would unearth. He stood down. “Sometimes it’s a matter of you can’t control what someone does, but you can set up an environment that makes them think twice about going rogue,” she explains.

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