Wise Law Roundtable - Stop and Drop the StopSOP Slate of Bencher Candidates

Commentaries from Wise Law's lawyers on current cases of interest 

Garry J. Wise: I'll begin with a bit of background.  

Every Ontario lawyer and paralegal is required to create and abide by a Statement of Principles that acknowledges an obligation to promote equality, diversity and inclusion generally, and in behaviour towards colleagues, employees, clients and the public.

Wise Law's own Statement of Principles is here.

Elections for Law Society of Ontario Benchers will occur on April 30, 2019. Benchers, who serve as the LSO's board of directors, fulfil a central role in the governance of Ontario lawyers and paralegals. As noted at the LSO's bencher FAQ: 

A total of 40 lawyer benchers are elected - 20 from inside Toronto, and 20 from outside Toronto. A total of five paralegal benchers are elected. 

...Benchers attend monthly committee and Convocation meetings to develop policies related to the governance of individuals licensed to practise law and licensed to provide legal services in Ontario. Benchers also attend ceremonial calls to the bar and paralegal licensing receptions. Benchers may also be appointed to the Law Society Tribunal and sit on hearings to consider cases related to the competence, conduct and capacity of licensees

A group of Bencher candidates, self-identifying as the StopSop slate, has organized itself to run on the singular platform of using "best efforts to revoke the Statement of Principles upon election."  

We are a group of lawyers and paralegals in Ontario who are concerned about the directive by the Law Society of Ontario (LSO) that each legal professional must abide by a Statement of Principles (SOP) that acknowledges an obligation to promote equality, diversity and inclusion generally, in our behaviour towards colleagues, employees, clients and the public.

We believe that the LSO has no business telling legal professionals what principles they must profess, value or promote, and that this is an encroachment on fundamental freedoms under the Charter of Rights and Freedoms. It does not matter whether you agree with the spirit or intent of the values which you are asked to promote; the fact that an arm of the state can dictate your beliefs to you, on pain of the loss of your livelihood, is deeply troubling.

We are putting forward a slate of candidates for the upcoming Bencher election (for governance of the Law Society) in April 2019. Each candidate undertakes to use best efforts to revoke the Statement of Principles upon election.

In this week's Roundtable, Wise Law's lawyers comment on the StopSlop gang:

Simran Bakshi: I entered the legal profession with a sense of optimism (and if I am being completely honest, naivety) about the diversity I would find within the Ontario Bar. 

My law school class had been fairly diverse, and I assumed that this is what I would find in the workforce as well. What I discovered, however, is that while there is some degree of diversity at law firms, particularly in the junior pool of professionals, the extent of diversity tends to get watered down in climbing the ranks. 

In fact, in my nearly five years of practice, I have come across many “racialized” articling students and associates, perhaps a handful of “racialized” partners and exactly one “racialized” judge. 

While I am not suggesting that there is a rampant issue of racism in the Bar, to say that we do not have a problem with diversity in our profession would frankly be burying our heads in the sand. 

Given the lack of representation of minorities in the Bar, I am hard pressed to find a reason why an effort to promote the Law Society’s mandate is being met with such resistance.

Some of our colleagues seem to take great issue with the fact that the Law Society imposes a positive obligation to affirm a commitment to  equality, diversity and inclusion. What they fail to recognize is that an act of discrimination is not necessarily mutually exclusive from a failure to be inclusive of minority groups. 

In any case, imposing a positive obligation on lawyers to give teeth to the principles set out in our Charter and the Ontario Human Rights Code is hardly unreasonable.

The irony of decrying the Statement of Principles on the basis that it supposedly infringes on upon civil liberties to decide whether or not to encourage and promote equality, diversity and inclusion cannot be lost.

Think about the message we would be sending here - it is not okay to discriminate against racialized groups, but it is okay to exclude them? Or rather to not promote their inclusion? 

As much as I am a proponent of the mandate behind the Law Society’s Statement of Principles, I am less than optimistic that it will be effective in bringing about the change it is meant to. 

I simply do not believe that you can condition a person to believe in equality, diversity and inclusion by requiring that they affirm to do so. 

A resistance to embracing diversity is typically premised on a sense of fear and ignorance about what is different. Signing an acknowledgement to act differently hardly goes to the root of the problem, and is a band-aid solution, if anything.

Still, the Law Society is to be commended for recognizing that there is, in fact, a real issue with minorities being fairly represented in our profession, even if its proposed solution leaves much to be desired.

Paul Adam: Many employees of large companies are forced to act as ‘ambassadors’ of their employers, and spout a lot of vacuous nonsense that has made its way into the ‘mission statement’ of International Consolidated Widgets LLC, or what have you. They have no Charter protections from being required to make those statements.

And what the Law Society is asking its members to do is actually affirm that they believe that the legal profession has a duty to hire and represent minority communities, in accordance with the Ontario Human Rights Code. So never mind the posturing about rights - what is it that you do not want to have to say?

Is it that you do not, in fact, believe in hiring people in accordance with the Human Rights Code?

Or is it that you believe, in the abstract, in hiring people in accordance with the Human Rights Code, but you don’t believe you should ever have to demonstrate that you do so in action?

In the recent decision of Trinity Western University v Law Society, 2018 SCC 33, the Supreme Court had this to say about the Law Society:

[20] In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.

[21] To begin, it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. This is especially so in light of the societal trust enjoyed by the legal profession. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions (see Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII), [2015] 1 S.C.R. 613, at para. 47).

[22] As well, eliminating inequitable barriers to legal training and the profession generally promotes the competence of the bar as a whole.

Maybe these Bencher candidates disagree with this finding, which is now part of the law of the land.

But the fact is, businesses, schools, and governments have had the right to take measures to promote substantive equality, not just theoretical equality, even when that requires others to make adjustments to things they find inconvenient, or uncomfortable.

Maybe they agree with it in principle, but disagree that they themselves should be required to do anything affirmative to make it so. The Anti SOP-slate writes:

It is correct that we have a duty not to discriminate on prohibited grounds, but there is no positive legal duty to promote equality, diversity and inclusion. The LSO is effectively forcing lawyers to do something which it has no legal authority to require.

I suppose they think that equal access to the legal profession will descend like dew from heaven, and melt those inequitable barriers all by itself, without a single member of the legal profession having to put any money where his or her mouth is.

Unfortunately for them, they are wrong. The Statement of Principles is not, as StopSOP insinuates, a Maoist Cultural Revolution coming to sweep away individual rights and subject them to struggle sessions led by law students of colour who ask to be referred to by gender-non-binary pronouns.

It is perfectly in line with the law of Canada for the past 20+ years, as articulated by the Supreme Court of Canada in Eldridge v. British Columbia (Attorney General)   [1997] 3 SCR 624:

77 This Court has consistently held, then, that discrimination can arise both from the adverse effects of rules of general application as well as from express distinctions flowing from the distribution of benefits.  Given this state of affairs, I can think of no principled reason why it should not be possible to establish a claim of discrimination based on the adverse effects of a facially neutral benefit scheme.  Section 15(1)  expressly states, after all, that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination . . .” (emphasis added).  The provision makes no distinction between laws that impose unequal burdens and those that deny equal benefits.  If we accept the concept of adverse effect discrimination, it seems inevitable, at least at the s. 15(1)  stage of analysis, that the government will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services.  

Even if I agreed with these candidates, I could not in good conscience vote for Benchers with such a poor understanding of our laws.

Garry Wise: The “compelled speech” arguments against the Statement of Principles strike me as both weak and grating.  Not to mention intellectually dishonest. 

The Rules of Professional Conduct represent the Law Society’s ultimate “statement of principles” applicable to the legal profession, and govern our dealings with the Courts, our clients, the general public and our professional colleagues. 

I hear nobody anywhere suggesting these Rules are offensive to any sensibilities, despite their deep regulation of what can, cannot, and at times, must be said in various circumstances we encounter each and every day. 

The Law Society also requires us to make many “compelled” declarations in our professional dealings.  As but one example, our Annual Reports naturally require us to affirm the truth of the practice-related and financial disclosures we make in these annual findings.  These compelled statements promote critical LSO objectives.  Is there anyone who would seriously raise an objection to that?

Would the anti-SOP gang also object if the Law Society required an affirmation that we promote the importance of ethics in practice and haven’t violated any Rule of Professional Conduct over the proceeding year?  

“You can’t force us to say that!”

Please. Call the proverbial whaaambulance. 

If the Law Society can “force“ us to list to the decimal the percentage of our time that we allocate to each area of practice and to state our trust account information is accurate, why shouldn’t it also be permitted to mandate that lawyers state that we affirm values of inclusion and don’t discriminate in our dealings with our employees, clients and each other?

It’s the law, after all. 

The objectors typically go to great length in pointing out that they, themselves, are nothing short of heroic in their own personal and professional diversity initiatives.  I’m sure that’s likely true, in many cases. 

They just don’t want to be forced to say it out loud, except in their self-serving bencher-election pamphleteering, where they’re arguing all-against the Statement of Principles.

That is a bit confusing.  

The legal profession continues to have significant and virtually unmovable diversity-related concerns. 

Why certain lawyers would devote even a moment of time to arguing against the Statement of Principles, let alone run entire political campaigns around their specious anti-SOP arguments, remains an unsolvable mystery to me. 

This so-called "debate" is not happening in a vacuum. We live in a time of escalating, record hate crime, incendiary political rhetoric and open racial intolerance in certain quarters.

Given this context, perhaps the anti-SOPPERS could better benefit society by devoting some of their misdirected energy toward real efforts to promote racial tolerance and inclusion - throughout the profession and throughout the planet.

StopSlop deserves to flop.

- Wise Law, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Wise Law Roundtable: Rogue Articling Students and a Lawyer's Duty to Supervise

Commentaries from Wise Law's lawyers on current cases of interest 

Background

All lawyers are expected to be good ambassadors of the profession and the justice system. This is not only when in court or in the office, but also when online and in the public eye generally.

In Law Society of Ontario v. Marco Forte, 2019 ONLSTH 9 (CanLII), a senior lawyer recently accepted disciplinary penalty from the Law Society because he failed in his duty to adequately supervise an articling student who was not living up to the standards of professional conduct on some online message boards, and Twitter.

But how far does this duty go? How much online activity can a lawyer - and should a lawyer - be expected to police?

A senior criminal lawyer, Marco Forte, hired his first-ever articling student. Her conduct online quickly became a problem, according to the ruling. Less than a month after she began articling, the student got in a verbal altercation with Court staff, flipped them her middle finger, and had to be escorted from the Courthouse by police. She took to twitter to allege that she had been illegally arrested.

She also made a number of posts on a Criminal Lawyer’s Association listserve, in which she made comments about “white male privilege” that other members found offensive and disparaging. She also made comments that apparently seemed to break rules about confidentiality. She also tweeted derogatory comments about Justices of the Peace, Crown attorneys and her firm’s clients:

...a Twitter post on September 3, 2015 reads as follows: “welp. apparently some JP’s just love to powertrip for no fucking reason at all, wasting everyone else’s time while at it.”

This pattern continued from July 2015, to December 2015. The lawyer put her on suspension, after being informed that she had tweeted publicly “about the inefficiencies of the court system and how all court clerks should be fired and replaced by robots [and] also described them as having jobs that were incredibly ‘futile and outdated.’”

Meanwhile, even while on suspension, the student:

“...continued to post tweets on the Lawyer’s firm Twitter account in the Lawyer’s name, without his knowledge. She also continued to operate a personal website, containing a link to the Lawyer’s website, which at one point listed the names of more than 50 “Bad Cops,” two “Bad Crowns” and two “Bad Judges.”

The Tribunal decision acknowledges that Forte knew about much of the student’s conduct all along, and was trying to address it with her, and supervise her, to prevent her from this kind of rogue social media activity.

However, the Tribunal found that Forte hadn’t gone far enough to curb her behaviour. While he did not “abdicate” his responsibility to rein her in, the Tribunal found:

“...the Lawyer’s well-intentioned efforts at supervision were inadequate; he failed to monitor or control [her] Twitter account, failed to review the contents of her website, trusted her assurances for far too long, and failed to take appropriate disciplinary measures until it was far too late. The Lawyer’s unfamiliarity with social media, or the demands of his busy practice, do not excuse this conduct.”

Our lawyers had these thoughts on this ruling:

GARRY WISE: A problem here is that this was a  consent disposition, and none of these issues appear to have been argued or adjudicated in any meaningful way.  I suspect this lawyer agreed to a slap on the wrist to avoid the enormous costs that would have been incurred in defending this.

SIMRAN BAKSHI: Reading between the lines, I think that the Law Society may have been troubled by the fact that the Lawyer requested the student to create a twitter account and website for the firm, which he did not monitor. As well, the disciplinary action that he did take was a suspension over what would have been Christmas break.

PAUL ADAM: The passage that bothers me is this one:

[46] “The Lawyer did not abdicate his responsibility to supervise his student; the problem was that his efforts, while well-meaning, were ineffective. As one of the Lawyer’s character witnesses put it, the Lawyer “struggled to assist [her] as best as he could” and “often spoke of his frustration” in helping her. He did not fail for lack of trying.”

PAUL ADAM: I do wonder if Courts and tribunals are swinging from a position of having no interest or faith in technology, to having wildly unrealistic expectations of how lawyers ought to be using and monitoring technology to accomplish things that are just not possible.

GARRY WISE: I’m not sure what more the lawyer could have done.  How does one monitor an undisclosed Twitter account?  Does linking a Twitter page to a firm website really equate to advertising?

SIMRAN BAKSHI: I agree that it seems problematic to connect a personal twitter page to a firm simply because it contains a link to the firm's website; however it seems that in this case at least several different members of the public drew a connection between her inappropriate conduct and the firm, simply from looking at her page.

PAUL ADAM: It reminds me of a costs decision that was reported a few months ago, Cass v. 1410088 Ontario Inc., 2018 ONSC 6959. It was a summary judgment motion on the issue of occupier’s liability. Whitten J. was not prepared to allow a $900 billing for legal research, on the grounds that the use of “artificial intelligence sources” could have cut down on counsel’s time on the file- no further explanation as to what that would entail. It’s a further case of a challenge is being put to lawyers involving the changing use of technology but we’re missing a meaningful standard of what a lawyer actually should or should not be doing, it’s just an admonishment to “do better.”

GARRY WISE: I’d be curious what an employment lawyer would have recommended had the lawyer consulted with one as these events were unfolding. At what point could termination for cause have been a viable option?  The termination of an articling student is not a decision to be taken lightly.

SIMRAN BAKSHI: I can understand how the lawyer may have had some responsibility to monitor the student’s Twitter account and take disciplinary action where warranted, after he was made aware of some her disparaging comments, but to require that he “control” her personal Twitter feed strikes me as being unreasonably onerous.

What are your thoughts?  Let us know in the comments or @wiselaw on Twitter.

- Wise Law, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Goodbye Google Reader: Survival Tips for July 1 and Beyond

Today at SlawTips, I look at the world after Google Reader, which is to be closed down on July 1st, and offer a few promising alternatives for legal power-users who just can't do without their daily RSS reader fixes:

So where shall we go on July 1 to find our vital law blog updates, breaking legal news, Law Society dispatches, musings in the legal press and NHL off-season developments? 

Worry not, good citizens.  SlawTips to the rescue!

See the entire post:  Survival Tips for Google Reader's July 1 Demise.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

"But I Still Really Wanna Be a Fireman..."

Did your mama always want you to become a lawyer?

Well, according to a survey conducted by Lawyers.com, those kinds of parental inclinations probably haven't changed much. Parents of the world still see a bright future for their children in the legal profession:

• 64% of survey respondents with children in the household want their child to become a lawyer. 

• Moms (55%) are more likely to be interested in having a lawyer as a son- or daughter-in-law than dads (38%).

•  80% of parents with household incomes of less than $25,000 per year said they’d like their child to become a lawyer, versus 54% of those with household incomes over $75,000.

Despite all the bad press out there on declining opportunities in the legal sector, it's somehow reassuring to know that the naysayers are having only limited impact on the parental pressure sector.

Of course, the survey probably didn't ask parents if they want their kids to become rock and roll stars...

So kids of the world, decide for yourselves.

But truth be told, law is a pretty good gig. Still.  Always.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Tax-Time Assessment

Today at SlawTips, I suggest a checklist of questions for lawyers to ponder about their firms' bookkeeping and accounting processes, with a view to making tax-day 2014 a bit more painless.

See today's post: New (Tax) Year's Resolutions.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Thursday's Practice Tip: Communications with Clients

In our column this week at SlawTips, David Bilinsky and I offer practical solutions to the oft-cited challenge of maintaining good communications with our clients:

Once a practice has matured, no lawyer can do it alone. The solution to the communications conundrum is probably as simple as this – develop good communications systems for your firm and recruit excellent staff to implement those systems.

...Clients who are in the loop are likely to be happy with their professional advisors. Those who feel excluded from their own cases or files are much less likely to feel friendly.

So set up systems that prioritize communications, and train your staff and colleagues to implement them religiously.

See: Solving the Communications Problem 

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Dialogue with the "Law Society Guy"

My discussion with B.C. Law Society lawyer and practice management guru, David Bilinsky, continues today with this week's installment at SlawTips.  

See Perspectives on Practice Management: The Regulator and the Practitioner.

Here's a snippet:

Perhaps our regulators would do well to recognize – and dare I say learn from – the degree of dedication and determination so many of us have to getting it right, just as we must recognize how discouraging it must be for our Law Societies to so constantly confront situations where individuals in our profession fall short or are perceived by the public to fall short in delivering the most basic of client services.

When David so kindly invited me to join him for this ThursdaySlawTips adventure, I confess I was both flattered and extremely interested in seeing where this conversation between the practitioner and the “Law Society guy” might lead.  

And while we will get to the answers to the practice management questions above soon (I promise), my Practice Tip for the day is a simple one:  When regulators and practitioners dialogue, only good things are bound to happen.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Slaw-tered

To Slaw or not to Slaw....

It took nearly eight years of blogging this blog, but I must acknowledge I have finally succumbed to the Slaw bug.

I will be joining my friend, David Bilinsky, for a weekly Thursday collaboration at SlawTips.

David introduced me to his loyal readers last Thursday.   My first piece, on collaboration, should appear tomorrow.

As a note, Arianna Simon seems to think my arrival might cause the "mischief level in the tips to rise."

He is a very smart man.

But I will bide my time...

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

A Continuing Kowalski Cameo

Perhaps I should feel honoured that for the last two-plus months I have continued to make a cameo appearance in prolific scribe Mitch Kowalski's Twitter avatar.  

(And I sort of do - feel honoured, or amused, or whatever...).  

Still, I confess that every time I see one of Mr. Kowalski's tweets and the accompanying profile pic, a far different image keeps creeping to mind:

"Hello Dum Dum" 

Now don't get me wrong - I don't have any problem with this, at all.

I'm not asking for royalties or anything complicated!

The impugned profile photo, by the way (now archived for posterity), was taken at the first LSUC Articling Debate in October, 2012.

Oh, and happy new year.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

2012 Clawbies Announced (#Clawbies2012)

The 2012 Clawbie Awards have been announced. Congratulations to all winners, finalists and nominees.

This is the seventh year of the Canadian Law Blog Awards. I was gratified to see so many of my own nominees recognized with Clawbie awards and mentions this year.

I am also proud to note that Wise Law Blog received the nod for this year's Clawbie in the Legal News category:

Our 2012 winner in this category is not a traditional legal media outlet; it’s a lawyer blog that does an outstanding job of filtering and curating news of interest and importance to legal professionals. The daily 140Law feature of the Wise Law Blog in Toronto receives our vote for performing, as Shaunna Mireau points out, much the same service that America’s Above The Law does for its readers: “a daily offering of legal headlines offered as a roundup post.” Garry Wise puts great effort into this consistent feature and deserves equally great appreciation for his ongoing efforts.

Runners-up: Three solid entries by our major legal media outlets:
Legal Feeds, by Canadian Lawyer magazine
Legal Post, by the Financial Post
National Magazine’s brand new blog, by the Canadian Bar Association.

Thanks to the Clawbie judges for this honour, and for their hard work in keeping the Clawbie flame a-burning in Canada's legal blogosphere.

Special thanks and recognition, of course, are also due to Rachel Spence of Wise Law, my collaborator in  our daily 140Law posts.

Many thanks again, and happy new year to all.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

2012 ClawBie Nominations (#ClawBies2012)

'Tis that ClawBie time of year again, and the Canadian legal blogosphere continues to evolve.

I have to be honest. Most of the new Canadian law blogs  I've encountered (and many of the old) are more information-heavy than readable.

Many of these blawgs are really wonderful when they turn up on a Google search of a topic I'm researching, and that is a significant contribution indeed.

Truth be told, however, they are not destination-blogs that I would keep going back to for the sheer joy of reading.

Whether this is ultimately an indictment of the risk-aversion of the corporate law-blog-by-committee or not, I'm not sure.  I'll just note that I don't find all that much interesting about these cookie-cutter blogs.

I've always leaned in the direction of writers with a point of view.

Law Blogger of the Year

It is therefore a no-brainer that Mitchell Kowalski receives my nomination as 2012 blawger of the year.

Whether you agree with him or not, Mitch will always get the discussion going. His ongoing critique of the inertia of the legal profession and its regulators is coupled with his own broad vision as to how we can embrace the challenges ahead.

He makes a key point - client-driven change is here, whether we like it or not, and those who adapt and innovate will be the profession's success stories of the very-near future. Mitch's well-received  book, Avoiding Extinction, released earlier this year, is a good entry-point for the uninitiated.

As a blogger, he's interesting, provocative and engaging.  Most importantly, he is emerging as an important, plain-English voice in Canada's dialogue on the future of the legal profession.

Keep an eye on this guy.

In With the New

Darryl Singer is a new, refreshing voice in the the nation's blawgosphere, and I will gladly nominate him as the ClawBie rookie of the year. His December 12, 2012 post, The Law Society's Misguided Decision, is one of the ballsiest and most personally courageous commentaries I have encountered in my nearly eight years online.  The fact that it provoked a detailed, online response from Law Society Treasurer Thomas Conway is no accident.

Mr. Conway's own Treasurer's Blog is more than worthy of a ClawBie nod, as well. Launched in October 2012, readers will be surprised to find that this is not just  the Law Society "party-line" and announcements  blog. The Treasurer's willingness to take a personal stand on the issues and engage in real debate is truly a breath of fresh air.  It's a must read.

Sarah Cohen's Fertility Law Canada Blog is another new law blog to take notice of.  A fine example of everything a specialized, niche-practice blog should be, there is no better resource online on the cutting-edge and rapidly evolving area of Canadian fertility and reproductive technology law.  As Sarah's online biography states, she "loves what she does - and it shows."

What About Bob?

I was pretty much decided quite some time ago that Bob Tarantino's Entertainment and Media Law Signal would be one of my ClawBie nominees this year.  Articulate, clever, thoughtful, witty and thorough - well, that's Bob Tarantino and that's his blog. He is one of Canada's best.

So I was decided on Bob - until I read Bob's own ClawBie nominations, and, specifically, his nomination of Barry Sookman, who, as Bob points out, has not to date been recognized with a ClawBie.

Barry is a prolific tweeter, blogger, and nationally recognized leader in Copyright, Intellectual Property, Computer, Internet, and e-Commerce Law.  Beyond that, he is a walking encyclopedia of knowledge - the kind of practitioner who can readily quote from memory entire paragraphs from dissenting Supreme Court of Canada opinions.

In a year that saw profound change in Canadian copyright law, Bob and Barry were a pretty effective one-two punch for ongoing updates and analysis.  I will thus nominate them jointly.

The Future

Others have observed an increasing gravitational pull away from law blogs and toward Twitter for online legal dialogue and information.  It's a distinction without a difference, I believe. The two platforms are entirely complimentary, and likely will continue to be.  The blog will remain the better forum for in-depth commentary and analysis, whereas Twitter will reign supreme for quick blasts of  breaking news, opinion and occasional hilarity.

While I've done more tweeting than blogging this past year, that's not carved in stone as the plan for 2013.  There is something to be said for articulating thoughts - and allowing them to evolve - through good, old-fashioned writing.

Time will tell.

But that's it for 2012.  It was a good year that saw the launch of WiseLii, participation in the LSUC Articling Debates, a gig at lawTechCamp, and a number of excellent Toronto Law Blogger meetups.

As I close out this year's blogging, my wish for 2013 is simply this - may next year be the year of technological modernization of Canada's courts.  There is no single more important initiative on the table, in my view, for our regulators, legislators and judiciary.

The absence of electronic filing of court documents imposes huge, unnecessary expense on the nation's litigants.  We can't claim to be serious about enhancing access to justice when our archaic court system still requires human couriers to attend at court in person to file each and every document in a court proceeding - at a cost of $30.00 to $150.00 a pop (depending on court location and time-urgency).

The absence of e-filing adds hundreds of dollars - or more-  in avoidable disbursement costs in every heavily-contested matter and, frankly, is an embarrassment to the administration of justice.

If the courts  and governments can't figure out the perfect system to implement - or pending implementation of such a system once developed - fergawdsake, just allow documents to be emailed to the courts, in lieu of in-person filing.

Happy 2013.

 - Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Canadian Lawyer Magazine: "Brief Intro to Lawyers on Twitter"

Nova Scotia lawyer Damian J. Penny providers a kind take on our Twitter feed in  his Canadian Lawyer Magazine article, A brief intro to lawyers on Twitter:

Toronto lawyer Garry J. Wise, in particular, has turned his Twitter feed (@wiselaw) into a must-read for Canadian lawyers, especially those practising family law. As I write this, he has posted 20 tweets — on everything from disciplinary proceedings before the Law Society of Upper Canada, to a constitutional challenge to warnings on cigarette packages, to news about a major discovery on Mars.

If only he’d use his Twitter account to tell us how he manages to go without sleep.

Like many Twitter users, Wise uses his feed as an extension of his blog (which actually features a daily recap of his tweets). 

Thanks very much to Canadian Lawyer for the mention.

And about that "sleep" thing? Well, Damian, that will just have to stay between me and the tooth fairy...

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Reflections on the Articling Debate That Was

While I certainly didn't favour the Ontario Articling Task Force's majority recommendations that were adopted by the Law Society's Benchers at Convocation yesterday, I don't think the vote for approval was a terrible outcome.

Some good may well come of it, yet.

As clumsy, semi-feudal and wholly undefined as the new two-tier system may now appear to be, if the new pathway ultimately comes to fruition - and I still have genuine lingering doubts about that - it will at very least, and at long last, eliminate the articling "numbers crisis."  Nobody can seriously object to that.

We are left with many unanswered questions about the structure, curriculum, delivery and cost - to the Bar and prospective licensees - of the new, alternate path for licensing.

Many of us objected to the new approach because we felt it to be inadequately creative, bold, innovative or respectful of time-tested evidence as to the necessity of articling in the making of a lawyer.

Hope nevertheless remains that the development and refinement of this new educational path will begin with a deep and genuine analysis of the practical skills actually required to enter today's legal profession, a profession that is increasingly being better understood and defined by the Jordan Furlongs and Mitchell Kowalskis among us than our Benchers and regulators.

Let us not train our new lawyers for entry into a prior generation's legal profession.

We must first develop a better understanding of what it will take to succeed as a professional, proprietor and manager in today's and tomorrow's legal profession.

Advocacy, drafting and negotiation skills, business acumen, practical skills, knowledge base, legal ethics, technological literacy, communications skills, social media engagement, and cultural awareness of what being a lawyer is - these considerations may be but the most obvious tip of the iceberg of knowledge a new curriculum must embrace to prepare licensees to enter a modern legal landscape now marked by ever-hastening challenge and change.

The existing articling programme will necessarily be impacted and ultimately improved by the conclusions reached in developing this new programme.

Ultimately, this pilot project - whether successful or not in getting off the ground and developing enduring credibility - will be a catalyst for long-overdue modernization of legal education and the Ontario lawyer licensing process.

We have our work cut out for us.

Let us hope this new pathway will not turn out to be an alternate "mere formality" or rubber stamped rite of passage into the legal profession.

Not every candidate for licensing necessarily must succeed. Quality - and competency - control counts more than ever.

The public deserves and requires that.

Convocation's direction was ultimately a compromise - an imperfect solution that gave most stakeholders at least a little of what they wanted.

Let us hope our profession uses this important milestone as a window of opportunity for genuine improvement in the licensing process.

Credit is due to the Benchers. As tempting as it may have been to  bounce this ball forward for another generation or two, they resisted that temptation and have acted with resolve.

Cudos are also appropriate for the open process that was adopted. Webcasts of Convocation are an idea whose time has come. Our regulators and the public will benefit from the resulting transparency.

I was very glad - and honoured - to have been involved in this process as one of the profession's "designated tweeters." The Law Society deserves real credit for that initiative, as well.  I am pretty sure that there is no other regulator of any profession, anywhere, that is more advanced than our Law Society of Upper Canada (i.e. Ontario) in its utilization of social media as a communications tool in furtherance of its varied mandates.

May these innovations continue.

- Garry J. Wise, Toronto

Webcast Today: The Law Society's Great Canadian Articling Debate II

Will Ontario law graduates soon have an alternative to the profession's articling programme?  Will the LSUC Benchers do away with articling all together?

Or will common sense prevail, with Benchers electing to devote the LSUC's resources and energies to strengthening, modernizing and expanding the province's current articling system, to ensure that an adequate number of quality articling positions will created by the profession for aspiring licensees?

Tune in to the resumption of the Law Society of Upper Canada's articling debate today at 9:00 a.m.

I will be live-tweeting from Osgoode Hall, along with a stellar panel of commentators.

For those interested in more of my thoughts, my previous post on the "articling crisis" is here.

(And while I have your attention -  don't forget to download WiseLii, our free mobile legal research app for the iPhone.  It's available at iTunes)

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

The "Articling Crisis" - Or is It?

On November 22, 2012, the Benchers of the Law Society of Upper Canada shall once again convene to address the province's so called "articling crisis."

I am not convinced there is any crisis at all. And I'm certainly not convinced that either of the solutions on the table is any solution at all.

The bottom line for me is simple - the Law Society should reject both proposals that have been advanced and opt instead to direct its unfettered energies and resources in the direction of strengthening, standardizing and expanding the current articling system.

We don't need radical changes or quixotic parallel programmes.

Rather, let's leverage this closely-watched debate into a golden opportunity to get serious about updating and modernizing our existing articling system.

To paraphrase Eisenhower (and my friend Irv Handler), the search for a scapegoat will generally be a successful enterprise. And as Ontario's Law Society and the profession have tackled this highly-charged "articling crisis," the search for scapegoats has indeed been predictably fruitful.

Who to blame?

Shall we blame the lawyers? The law schools?  The Law Society?  The Federal government? The Province?   The marketplace? The students themselves?  All of the above?

I suppose it should not come as a surprise that a significant contingent of those studying this so-called "articling crisis" have opted for none of the above. They have decided, instead, that it is articling itself that is the problem.

Off with its head!

So say the dissenters.

In their heroic quest to solve the "articling problem," they call for an end to this time-tested process of practical, on the job learning in favour of a yet-to-be defined, practical legal education programme - after law school - that will cost each license applicant thousands of dollars. As if their student loan burdens aren't already breaking them.

The majority's "parallel systems" proposal isn't much better. Do new lawyers or the public really stand to benefit from an ill-defined two-tiered system that bypasses necessary on-the-job training for the unlucky some, while costing the profession millions of dollars over a ten-year period?

Background - The Articling Task Force

The essential background reading is here:

• Articling task force proposes parallel licensing systems - Canadian Lawyer Magazine

• Pathways To The Profession: A Roadmap For The Reform Of Lawyer Licensing In Ontario - Articling Task Force Final Report

The Great Canadian Articling Debate

Now I confess to being somewhat late to this discussion.  Yes, it is true that amidst all the digital noise to which my email and RSS feeds are regularly subjected by LSUC, the CBA, the OBA and their ilk, I was vaguely aware at some point last year that the Law Society was studying the difficulties some articling candidates were having finding jobs, with a view to making recommendations to address this concern.

However, never in my wildest dreams did I expect our governors to actually try to do something about it.  They so rarely have.

But in this case,  they have dug in, indeed. And now verge on getting it all wrong.

In my mind, it is plainly obvious that the solutions to the articling jobs problem simply involve mobilizing the lawyers, the law schools, the Law Society, the Federal government, the Province, the marketplace and the students themselves to create and fund the 200 or 300 new articling jobs we need  - and perhaps in the process, address the access to justice issue we never tire of discussing and collectively avoiding.

At the risk of plagiarizing my own Twitter comments, let me reiterate:

Ontario: 35,000 lawyers,63 legal aid clinics, 172 Courthouses. #LSUC: Do we really believe we can't create another 300 #articling jobs? Shame.

Surely, we can find a way to place these not-yet employed articling students in a dynamic programme that rotates them between community legal aid clinics, courthouses, public advocacy organizations and government agencies.

If wholly funded by the profession (and it should not be), 300 positions paying a modest stipend of $25,000 for ten months of articling would cost each of  the Law Society's 35,000 members the staggering sum of $214.28 annually  At $30,000, the cost per lawyer would be $257.14.

(And yes, prospective students who can't find articling jobs, I understand that's not what Bay Street pays. Deal with it.)

University of Ottawa Law Professor Adam Dodek has set out an inspired proposal along these lines in his recent Slaw article, Articling and Access to Justice: An Ontario Legal Corps – Why Not?  I urge readers to give it a look.

Now I don't suggest a Legal Corps is the only solution, but do I think it is a good, progressive initiative that would reflect the best traditions of our profession.  It should be implemented.

My sense is that there is widespread consensus among Ontario lawyers that articling is an important, perhaps crucial component in the making of a competent lawyer. There is good reason the "articling debate" is so emotional.

I'm not sure I agree entirely with this comment on a March 2012 Canadian Lawyer article on the articling crisis, but there is enough truth in it that I believe it bears repeating:

The majority of law school graduates who cannot find articling positions are students who couldn't get into a single Canadian law school and had to go abroad. There has simply been an increase in these types of back-door students, and this is causing the articling shortage (in addition to the U of O's recent money-grabbing exploit). I wouldn't call it a crisis.

I hope that the LSUC does not take an "everyone deserves to be a lawyer" approach. If they eliminate articling, it'll just open up the flood gates and send us down the path of the U.S. legal profession, where anyone with money to pay tuition can join the profession. I wouldn't be surprised if English and Australian schools opened up private campuses in Ontario.

The LSUC needs to find a way to allow only the best and brightest to become lawyers. The elimination of a practical articling experience will not serve the public interest; it'll just allow for the existence of more members to pay dues.

And while the law schools - in Canada and Australia (Australia?) - plainly must shoulder a good deal of the blame for relentllessly flooding the marketplace with ever-increasing numbers of  J.D. graduates that the profession has inadequate capacity to absorb in articling positions, at the end of the day, it is we lawyers who will have to solve the problem.

The Law Society, quite understandably, is in a regulatory pickle over the articling shortage.  A fair licensing process cannot place candidates in a catch-22 that requires completion of articles when there are no articling positions to be found. The imposition of hurdles that cannot be jumped in the licensing process is ultimately arbitrary and unconscionable.  The fact that racial minorities are so dramatically overrepresented among those who do not find positions discloses a discriminatory component in this issue that simply cannot be tolerated.

The Law Society must therefore take a leading role in creating these needed positions. That they have tried and failed so far is rather unfortunate.  They - and we - must try harder.

My understanding is that approximately 300 new articling jobs must be created and the numbers problem will be solved.  (Perhaps it is only 200 or 250, depending on who you are talking to, but let us safely assume the additional requirement is somewhere in that range).

There are 35,000 lawyers in the Province.  If only one out of every 100 lawyers in Ontario became an new articling principal, once again, the numbers problem will be solved.

What do we know about firms that do not take on students? What are their issues? Money and cash flow concerns?  Shortage of work? Discomfort with the added responsibility? Desire to avoid dealing with the Law Society? Fear of change?  Lack of confidence?  Lack of interest? Nobody ever asked?

I'm not sure we know the answers to these questions.  That is unfortunate, but not fatal to action.

I suppose our firm, Wise Law Office, is a relative rarity in the profession in that we are a small firm that has hired articling students most years over the last many years. Our students have been a great bunch, and most were able to carve out a valuable role in direct advocacy work on behalf of our clients and as respected members of our team.  It is simply a pleasure to see students emerge over the short articling period as trustworthy, ethical and capable professionals. I genuinely take pride in our students' successes, during and after articling.  That really is a reward.

By way of example, just recently, I received a complex pleading that had been drafted by one of our former students.  On reading it, I couldn't help but note how incredibly well-conceived and meticulously drafted this lengthy document was.

As I told him, I wouldn't have changed a word.

"I had a good teacher," he responded.

I urge my colleagues in small law practices to consider creating an opportunity for a student.  I suspect you will be glad you did.  You may even decide you can't live without articling students on staff in the future, as I did.

The Law Schools

The law schools have a role to play in creating new positions.  Aside from funding placements in their own legal aid clinics, I would urge Ontario's law schools to reach out to smaller law firms about articling opportunities.  If you are selling your students on a Seven Sisters or bust mentality about articling, you are doing them - and the profession - a great disservice.

The law schools need to make a concerted effort to include small law firms in their career fairs - and they need to wholly subsidize any costs associated with small firm participation in these events.  They do neither.

The annual Summer and Articling Career Fairs, jointly run by the University of Toronto and Osgoode Hall Law Schools at  the Metro Toronto Convention Centre,  features an appallingly small group of employers - in 2009, only 58 employers participated.  The 2012 Fair boasted an increase to "over 70" employers in attendance at the 2011 event.

That is a very small - and certainly not representative - slice of the profession being featured.

The law schools need to stop selling students on the fantasy of the "big firm" payoffs.  They must take real responsibility for matching students with firms by including smaller firms in the menu of career options they place before their students.

Many, if not most, licensees will ultimately find themselves practicing in smaller firm environments. The value of preparing for that career destination with the kind of hands-on practical experience gained while articling with a smaller firm is so rarely considered, let alone advocated by our regulators.

It's high time to end all that.

Articling with a smaller firm need not be seen a consolation prize for those that biglaw passes by - for many aspiring lawyers, such articles may well be the best preparation there is.

Regulatory Solutions

Not so long ago - in 2011, to be exact, the Law Society of Upper Canada inaugurated a formal requirement that licensees participate in a specified number of Continuing Professional Development hours annually.

In other words, the Law Society requires us to learn.

If the Law Society is prepared to require lawyers to learn, I see no reason in principle that the Law Society should not also require licensees to teach.

If voluntary participation by lawyers in the articling programme cannot be increased, I propose a requirement that each licensee with ten or more years of practice experience be required to serve as an articling principal at least once every five years for at least one-half of a ten-month articling rotation.

Problem solved.

Of course, then lawyers would be scrambling to find students.  And we'd have another crisis.... and another task force...

And I'd have to write another one of these long blogs.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Introducing WiseLii, Canada's Mobile Legal Research Tool

We are very happy to announce the launch today of WISELII, Canada's Mobile Legal Research Tool, an access to justice initiative for all Canadians by Wise Law Office.  

WISELII is a free app that makes Canadian legal information, legislation,  jurisprudence and searches instantly available on the iPhone mobile platform.

See our User Guide at the WISELII Home Page for more information on the app, with numerous screenshots.

WISELII is an independent project from Wise Law Office.  It is in no way affiliated with CanLii or any Legal Information Institute.

We would like to express our thanks to CanLii, nonetheless, for its exceptional research tools and for permitting WISELII to access its data for this iPhone application.

For more on WISELII from the Financial Post, see: New free mobile app gives greater access to justice to all Canadians.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

WRONGFUL DISMISSAL • CIVIL LITIGATION AND ESTATE LITIGATION • FAMILY LAW AND DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

Developments in Access to Legal Information Online

Here are a couple of items that I've been meaning to mention, each highlighting new ways in which the online world is expanding to provide enhanced access to information and services for the legal profession and the public:

• Lawline.com recently opened up its entire continuing legal education course catalogue for free access to lawyers. As its press release noted, this unlimited access "is a game changer for the legal industry and online education everywhere."  I am hoping this model may be of interest to the Law Society of Upper Canada, which is amassing an impressive and growing catalogue of videotaped CPD programmes. Wouldn't it be useful for the LSUC to give members easy, on demand online access  to archived CPD video and materials? My thought is that LSUC membership should include unlimited, free access to any video programmes and materials in "the LSUC vault" from one year after original presentation dates. The time has arrived for a CLE portal of this nature in Ontario. 

• Congratulations are in order for our friend, Omar Ha-Redeye, who joined My Support Calculator as General Manager several months ago. (Omar is also continuing in his own, private law practice with Fleet Street Law). My Support Calculator is an essential new resource for Canadians who find themselves involved in the nation's family court system. Delivering quick, easy and free access to the child support and spousal support "numbers" that separated parents and spouses need to know, My Support Calculator is a near-godsend for Canada's unrepresented litigants - and the judges and counsel working with them.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

WRONGFUL DISMISSAL • CIVIL LITIGATION AND ESTATE LITIGATION • FAMILY LAW AND DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG