bob tarantino

CLB Media Presents

Cripes.  Step away from the blog for a few days to concentrate on writing an article, and everything goes completely bonkers.  Canadian Lawyer magazine and Law Times each have a whack of interesting things in them:

• "War of the Words" - a cover story on Richard Warman, Doug Christie and the ongoing battle against Section 13 of the Canadian Human Rights Act.

• A nice expose on the machinations behind changes to the governance of the legal profession in Ontario, shining a light on just how obstructive those intent on keeping things exactly the way they have been are willing to be (random examples: the task force created in 2006 to study the matter still hasn't delivered its report; reactionaries in the system are now fighting tooth and nail over the order of the process - debate issues and then solicit views, or solicit views and then debate the issues?).  The best moment is when a current bencher argues that the current governance structure is too complicated for even the lawyers who it governs to understand.  That such a conclusion is an argument in favour of its reform seems to have eluded everyone.

• Two really good articles on the future of lawyers and technology: "Lawyering for the Future" and "Lawyer strikes chord with online DIY divorce"

Lawyers and Professionalism

Christopher Whelan has published an interesting article about the confluence of "professionalism" and the business realities of practicing law (particularly at large commercially-oriented firms) in the 21st century.  The abstract:

This article outlines the contrasting 'professional' and 'business' visions of legal practice and the lawyer's role in society. It sets out the regulatory 'maze' that had developed in the UK prior to 2007, reflecting the unresolved business/profession dichotomy. In 2007, radical and revolutionary reforms were introduced in the Legal Services Act. The reforms appear to signal an end to professionalism, the final intrusion of the marketplace into legal services, and the victory of the business vision of legal practice. However, I argue that a closer analysis suggests that a new vision of legal practice has been created specifically - and paradoxically - with global law practice in mind. Law should be both a business and a profession because professionalism is good for business! Global law practice has been reconstituted as a hybrid: business and profession.

The article also provides an excellent primer on the recent history of regulatory reform of lawyers in England.

Lawyers in Comics

My new favourite article: Hi Superman, I'm a Lawyer: A Guide to Attorneys (& Other Legal Professionals) Portrayed in American Comic Books: 1910-2007, written by William A. Hilyerd.

"the answer is likely to hinge"

It is heartening to read of the efforts being made to "restore" (perhaps properly rendered as "imbue") an ethic of professionalism to the practice of law:

The story is symptomatic of a worrisome trend – the erosion of professional standards as billings take precedence over the long-term development of proficient, ethical, well-rounded lawyers. With public criticism of the legal profession on the rise, a call for more exacting professional standards has taken on new urgency.

The first task for proponents of the professionalism movement has been defining what they mean. By consensus, it appears to boil down to civility; mentoring; continuing education; maintaining client confidentiality; avoidance of conflicts; and maintaining independence.

“It has to do with the notion that being a lawyer does not mean simply holding a job,” said Ontario Court of Appeal Judge Stephen Goudge, a moving force in the campaign. “This is about being part of a profession that is given a stature and a certain prestige and, in return, includes a significant service component.”

Evidence is mounting that the movement is more than hot air. The Law Society of British Columbia recently became the first regulator to mandate compulsory continuing education for lawyers. Others intend to follow suit, including the Law Society of Upper Canada, which will make extra training compulsory for lawyers in their first two years of practice.

Institutes have also sprung up, such as the Chief Justice of Ontario's Advisory Committee on Professionalism and the University of Toronto's Centre for the Legal Profession.

... Those who are pushing professionalism must come to grips with a business model of law that places a premium on retaining clients. As Cornwell University law school professor Brad Wendel told a U of T symposium on professionalism last week, sharpening your ethical acuity can be difficult when you are “maniacally billing 2,200 hours a year.”

... Notwithstanding the professionalism movement's focus on lofty motives, there is also a defensive undertone to it all. The profession is undeniably under siege.

... The profession is fighting a potent narrative line alleging that the practice of law has declined from a golden age – when lawyer-statesmen operated with a communal sense of honour – into a grubby little trade whose practitioners scrap for the right to gouge clients.

While the effort is admirable, I can't help but envision it as an exercise in pushing a very large boulder up a very steep incline.  Practicing law has always been, in part, a business endeavour, but what is particularly troubling is the privileging of the business component over all other considerations - which, to be clear, is really the only way to account for the mega-firms which lumbered across the terrain over the last thirty years.

As many concerns as that development raises, however, there is a much more erosive factor at work - the same corrosive mentality which prompts a "deep spiralling funk" on the part of Ontario Court of Appeal Judge Stephen Goudge, one which the profession is in danger of completely overlooking.  And it is this latter matter which is much more important for the future of the profession - the public standing of lawyers (see this [pdf] 2003 Ipsos-Reid survey for a sense of how low public trust in lawyers and the judiciary is) is impacted hardly at all by the "work-life" balance maintained by lawyers, how civil they are to one another or whether the bizarre intricacies of conflict interest rules are observed in the types of corporate cases which impact a marginal handful of clients.  Which isn't to say that the foregoing items aren't worthy of attention - but if you want to address the plunging level of public confidence in the profession, if you want to ensure that self-regulation continues, then effort needs to be expended on what actually tends to enrage individual members of the public (the very people, it unfortunately needs to be repeated, whose best interests the profession is charged with protecting): lack of access to legal representation at affordable prices; the perceived coddling of incompetent, untrustworthy and outright criminal lawyers; and the lack of innovation, transparency and accountability in the governance of the profession.

The Transformation of the Legal Journal

The Durham Statement on Open Access to Legal Scholarship (signed by law librarians at some of the largest US law libraries) calls for the transition of all law school legal journals from print to digital publication.  There are a variety of rationales for this (cost savings, shelf room) but the obvious one is that there's simply no need to retain the print version of law journals: most titles are available via online sources (HeinOnline, LexisNexis, etc.) and those online sources are vastly preferable to paper versions for research purposes (searchable, accessible anywhere, etc.) - if you need a paper copy, just print it up at your desk, rather than lugging a small brick over to the photocopier and trying to get the margins correct so things don't cut off 3/4 of the way through the page.

This also follows a "dramatic decline" in the number of paid subscriptions to some law journals.  The Law Librarian Blog posited a number of likely causal factors for the decline, of which online availability is only one: falling alumni subscriptions, lack of relevance to practitioners and declining subscriptions from courts and law firms (which themselves are likely prompted by online availability).  As noted by the Law Librarian Blog, the sheer ubiquity of law journals perhaps plays some role as well: it is absolutely staggering how many law journals are out there, and how many articles are published each year.  There may be a psychological factor at play in some cases: devoting funds to a particular journal can seem almost futile.

Bu the greatest potential in the nascent movement heralded by the Durham Statement is actually buried a bit in the Statement itself:

Additionally, and potentially most importantly, a move toward digital files as the preferred format for legal scholarship will increase access to legal information and knowledge not only to those inside the legal academy and in practice, but to scholars in other disciplines and to international audiences, many of whom do not now have access either to print journals or to commercial databases.

I think that's actually a little bit coy: the goal should be to increase access to everyone outside "the legal academy and practice", not just "scholars" or "international audiences" - laypersons right here in Canada or the US should have free access to journal articles as well.  The unspoken problem with just moving publications to digital formats is that access writ large is not addressed: even if articles are on HeinOnline or LexisNexis, having an academic or firm subscription is still critical in order to get inside the walled garden.  Which is why this statement by Wendy Reynolds at slaw is so critical:

I’d also love to see the functionality of CanLII extended to include secondary literature - either by scraping websites, or by functioning as a permanent repository for this material.

Now that would be revolutionary (for those who aren't familiar with it, CanLII (the Canadian Legal Information Institute) is a website which provides completely free access to Canadian caselaw, statutes and regulations (including powerful search functions and noting up features).  Run by the Federation of Law Societies of Canada, CanLII's goal is "to make Canadian law accessible for free on the Internet".  There are, of course, immense cost, time and copyright issues which would come into play in the endeavour of making journal articles available on CanLII, but hopefully we are moving in that direction.

Lawyers and Blogging

The Lawyers Weekly published an article this week by Mark Herrmann entitled "Is blogging worth it?".  Herrmann seeks to answer two questions: Is blogging "worth it"? and Is blogging a worthwhile business development tool?  It's a decent article, and touches on most of the plausible answers to those questions.

However.

Here is the blog at which Herrmann writes: Drug and Legal Device Law.  Take a look at it.  Notice anything?  Notice anything pertinent to the audience of The Lawyers Weekly, which is "the first newspaper for the Canadian legal profession ... serv[ing] the national market with bureaus in Ottawa and Toronto and correspondents across the country"?  Herrmann is a US citizen, writing a blog about US law.  Much love to the good folks at The Lawyers Weekly (who have been gracious enough to publish a couple of things by me in the past), but, seriously, thirty-three million Canadians and we couldn't find one blogging lawyer to write a piece on whether blogs add anything to the practice of Canadian lawyers?

Herrmann notes, "As a result of two years of blogging, I’ve appeared on television shows on CNBC, Bloomberg and C-SPAN. I’ve been interviewed by, and quoted in, The New York Times, The Wall Street Journal and countless regional papers. I’ve been invited to speak at academic symposia, continuing legal education programs and state Bar conventions. A major academic press has approached me about a book deal."  The Canadian blawgosphere is a diverse place, and I can't claim familiarity with everyone who inhabits it and the success they've had blogging, but I can personally guarantee you that setting up a blawg in Canada will produce nothing similar to those results.

Canadian blawggers aren't difficult to find.  Stem Legal maintains a whole list of 'em.  And I certainly don't mean this to be some kind of chauvinist whine about sourcing a Canadian for the article, because the issue is somewhat more subtle than that: Canadian blogging, and by extension Canadian blawgging, is a quite different beast from American blogging/blawgging.  To crib from Clay Shirky, more isn't just bigger, more is different.  The sheer size of the American legal community and audience for legal writing means that blawgging in Canada and the US are inevitably going to be endeavours with radically different results.  It would have been interesting to see what, f'rinstance, David TS Fraser had to say on the topic, or read the insights of the writers of the Hoyes Michalos bankruptcy blog (timely!).  Regrettably, the impression that blogging is blogging is blogging has delivered an informative but perhaps less-than-useful installment.

"the battle lines have been drawn"

The latest installment in Maclean's magazine's ongoing look at the legal profession in Canada is here, and it's an absolute must-read for anyone interested, even marginally, in issues surrounding the future of the legal profession, self-regulation and legal ethics.  Excepts really just won't do it much justice, but here's something worth pondering:

Law societies don’t just restrict other providers; they do it to their own members, too. Lawyers’ ability to advertise, for example, is limited. As noted in the Competition Bureau report, the Law Society of Newfoundland and Labrador forbids its members from advertising discounted prices. Yukon’s law society prohibits lawyers from using photos, logos or symbols, and restricts the size of lawyer advertisements (their restrictions are currently under review). In several provinces, lawyers can’t advertise their fees compared to other lawyers. Not only do such rules hinder the public’s ability to shop around, “they create less incentive for lawyers to be innovative” in the services they offer, says Chris Busuttil, director of advocacy coordination at the Competition Bureau.

This, however, remains my favourite quotation from the piece:

Just like government, law societies work in the public interest, says Derry Millar, treasurer of the Law Society of Upper Canada: “We elect politicians to sit in Parliament, and [they] run programs for the public benefit.”

They sure do.

A variety of works from Wesley Pue, who is cited in the Maclean's article, can be found here - many of them relate to self-regulation, which is really the central locus of the debate; helpfully, Wue provides comparative analyses to other common law jurisdictions (which, it should be noted, with the exception of the US, have been moving away from allowing lawyers to regulate themselves).

U of T Centre for the Legal Profession

Like a big dope, when I wrote this post and queried where the Canadian equivalent of Stanford's Center on the Legal Profession was, I completely managed to overlook the University of Toronto's own Centre for the Legal Profession.  The U of T CLP has lots of good stuff at its website, including this paper by Adam M. Dodek, which surveys academic writing on Canadian legal ethics (which includes lots of jumping-off points for anyone looking to do graduate work in that area).

The U of T CLP is also hosting (on Friday, February 20, 2009 - i.e., today) a Symposium on Lifelong Learning in Professionalism which will be webcast.  (Personally, I think that for purely alliterative purposes it should have been called the symposium on "Lifelong Learning in Lawyering".)

Outsourcing and Offshoring

The Lawyer's Weekly published an excellent piece about the practices of outsourcing and offshoring legal work, highlighting some of the business and ethical concerns raised.  The Ethical Lawyer blog had a nice post about those issues last year, entitled "Legal offshore outsourcing: An ethical pandora’s box?"

Lawyer CLE

Shaunna Mireau at slaw has a detailed post about continuing legal education (CLE) for lawyers, and the various approaches (mandatory, advisory, voluntary) adopted in different jurisdictions.  Ontario, for example, opts for a somewhat odd blend of the latter two: CLE is not mandatory, but there is a recommended "minimum" amount, and if you do undertake any CLE you are required to report having taken it - which seems to completely misapprehend the point.

I think many lawyers view CLE requirements as slightly obtuse: impose a requirement, fine, then I'll just attend a couple of lunch seminars at which I'll concentrate mostly on the construction of my dining (do I need an extra plate for the dessert, or can I squeeze it all onto one? do I need to come back and get a drink, or can I balance a can of pop between my pad of paper and plates?), tick off the appropriate box when it comes to reporting time and nobody is really any further ahead in the whole charade.  Which is unfortunate: mandatory CLE is an excellent opportunity to (a) step away from the grind of daily work, (b) enhance your skills and (c) potentially contribute to the development of the profession.

One of the more interesting things I've been studying is the UK's scheme for relicensing and recertification of doctors - in short, every five years doctors will be obliged to demonstrate their continued fitness to retain their medical registration.  That approach would bring howls of protest from lawyers, but, while the UK approach is the product of a particular series of circumstances, it's not an entirely unreasonable demand that society makes on professions.  In order to avoid that result, lawyers should be more prepared to undertake in good faith less intrusive initiatives, which would make the argument for the necessity of the more stringent approach much less convincing.

Hit by the Bus

Dan Pinnington, over at slaw, has a useful post containing some links with tips on matters to consider if the unthinkable happens and you (in this case, you being a lawyer) "become disabled or pass away unexpectedly".  Unfortunately, most of the tips and hints contained in the links really consist of "big picture" advice - winding down a practice, transferring clients, etc.  They don't take into account the most immediately pressing matters when a lawyer suddenly becomes incapacitated: what do we do about this file/transaction which is occuring right now?

I've thought for a while now that this is a prime function that internal wikis could perform.  The title of this post comes from a thought, admittedly morbid, which sometimes strikes when you're in the middle of a transaction, whether complicated or not: what happens if X gets hit by a bus?  Particularly in a law firm environment, where multiple lawyers are working on a single file, each individual inevitably builds up a collection of "soft" knowledge about the file - impending deadlines, who to call at the client to get instructions about particular matters or obtain particular pieces of information, the exact status of negotiations on a particular agreement, etc.  If one of the lawyers suddenly drops off the file (i.e., gets hit by the proverbial bus), what happens to all that knowledge?  How do the other team members try to re-assemble and take advantage of that knowledge (which might be scattered through various hand-written notes, emails, draft documents or, even more likely, just "held in the head" as it were)?

Internal wikis can try to plug that gap - if all members of the team are disciplined about contributing to the wiki, it can form at least part of a common knowledge repository which all team members can rely on in the event something goes awry.

"fielding desperate calls"

One of the consistently amazing things about the ongoing debate in Canada regarding access to justice is the absolute insistence of the organized legal profession that they have virtually no responsibility for addressing the matter - or at least no responsibility which would extend to impinging on the protected privileges of the profession.

This Maclean's story is telling: as the article details, part of the cause of increasing (and increasingly unaffordable) legal fees in Canada is the artificial restriction on the supply of lawyers - as even the Chief Justice of the Supreme Court of Canada has repeatedly stated, the lack of affordable lawyers is an "acute" crisis.  The numbers are restricted by the provincial law societies, who impose the regulations which admit individuals to the practice of law.  One of the mechanisms used to artificially depress the number of lawyers is the number of law students graduating each year: as the Maclean's piece notes, the number of law school places available in Canada on a per capita basis is significantly below the numbers in comparable countries, and worse, the number of places hasn't meaningfully budged in decades.  This is hardly unique to the legal profession - Canadians are now in the throes of a similar healthcare crisis because our governments made the brilliant decision about twenty years ago to drastically limit the number of doctors graduating, evidently not accounting for the fact that populations in industrialized liberal democracies have this bizarre tendency to increase as the years go on.

The response of the profession?  "Pfffffttt - not our problem."  The Law Society of Upper Canada harrumphs that it is "simplistic to think that the high cost of legal services and problems of access to justice can be solved by simply adding more lawyers to the market" - it's a bit unclear who is saying that the problem could be solved by adding more lawyers, but surely the onus is on the Law Society to demonstrate why it would be a bad idea to add more lawyers.

And buried in that last sentence is the core truth of what this is really about: dereliction of duty on the part of the legal profession.  Over at slaw, the point manages to get entirely overlooked:

"controlled entry can make sense (whether or not it’s fair to entrants or the public) to the regulators"

No - controlled entry cannot make sense "whether or not it's fair to entrants or the public".  The entire animating purpose of the legal profession, of any profession, is that it act in the public interest.  If something is "unfair to the public" then it is not a course of action which the "regulators" (i.e., the law societies) are entitled to undertake.  This is not an option - it is an obligation.  The protection and promotion of the public interest is the entire animating principle for the privilege of self-governance accorded to the legal profession.

Section 4.2 of the Law Society Act (Ontario) provides as follows:

In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.

2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.

3. The Society has a duty to protect the public interest.

4. The Society has a duty to act in a timely, open and efficient manner.

5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.

Notice anything missing there?  Right - there's nothing about protecting the market position of current lawyers.  Zero.  Full responsibility for the regulation of the legal profession has been devolved to the profession itself on the condition that it exercise it's responsibilities in accordance with its fundamental duty to protect the public interest.  The public interest is manifestly not being served - every piece of empirical evidence indicates this, the clamour from the public, the judiciary and members of the bar itself keeps increasing and yet... and yet.  The acute crisis continues on.  Obvious and easy solutions, even if only partial solutions, are dismissed out of hand.  At some point this will all catch up with the profession - continued dereliction of duty by the organized bar will be met with the response that the principles of governance in a liberal democracy demand: the privilege of self-regulation will be revoked.

Stanford Center on the Legal Profession

Mitch Kowalski noted that Stanford Law School has recently opened the Stanford Center on the Legal Profession, whose mission includes "research, teaching, programs and public policy initiatives on crucial issues facing the bar" with a focus on "issues of professional responsibility and the structure of legal practice".  As Mitch pertinently asks, "where is the Canadian equivalent?"

Indeed.  Centres such as the Stanford CLS tend to live or die depending on the dedication, enthusiasm and innovation of the faculty members who initiate and staff them.  Which means it's past time to get Jordan Furlong appointed to an academic post somewhere.

UPDATE: Ooops.  "Where is the Canadian equivalent?"  Here: The Centre for the Legal Profession at the University of Toronto Faculty of Law.

"overmatched laymen bumbling through labyrinthine court procedures"

The Walrus has published a piece addressing the access crisis which plagues the Canadian legal system.  For my tastes, the proposed solution (guaranteed access a la health care) is precisely the wrong one: because it results in a removal of responsibility from its proper locus - namely, lawyers.

As with any discussion about reforms to the legal system, once the conversation includes lawyers, one topic, peculiarly enough, drops out of sight: meaningful sacrifices on the part of the legal community itself.

What are the problems which have been identified?  Lawyers cost too much and the system is too complicated.  In the abstract, what are the solutions to those problems?  Make lawyers cost less and make the system less complicated.  Talk to the lawyers, however, and what is the solution that they propose?  Give us more money. 

As the article describes, the most innovative and productive efforts arose precisely as a result of a diminution of legal aid funding.  If the only metric which the legal community will consent to use is the market mechanism of pricing, then the bulk of providers of legal services will do the most economically rational thing possible within that framework: namely, chase the most lucrative work and highest-paying clientele, leaving the vast majority of legal needs unaddressed.

We already know that the organized bar cannot be relied upon to effect change within the timeframes which are required (i.e., yesterday).  To take a simple example, since that day a little over twelve months ago when the paladins of justice manned the barricades in defending the precious honour of the legal profession after a newsmagazine used an unflattering word about them, has a single meaningful and effective step been taken to address the threat to our justice system represented by the high cost of legal fees?  Has anyone at the highest levels of the profession done anything which has rendered actual tangible results in the over two years since the Chief Justice of Canada issued her clarion call about the "epidemic" afflicting our courts?  Well, other than holding out their hands and sniffing "more, please"..

Here's a wacky idea: how about the government mandate, as a quid pro quo for the continued state-sanctioned monopoly which is granted to lawyers, that lawyers and/or law firms devote a particular amount of their time/resources to the provision of pro bono or reduced fee legal services to poor and middle-class citizens?

"a legal profession that fails to respond runs the risk"

Should lawyers continue to be self-regulating?  The answer can only be guided by assessing the metric which is supposed to motivate the principle of professional self-regulation: the best interest of the public which we serve.  Two of our three closest common law sister jurisdictions (namely, England and Australia, with the US being the holdout, except for some minor incursions in the context of securities law) have decided that lawyers should no longer be self-regulating and that regulatory power should be held by the state.  Will Canada venture down the same path?  Paul Paton offered some thoughts here.

“doctrine of mental reservation”

Franco Tarulli posts a thoughtful and link-rich post which ponders: is it ever acceptable for a lawyer to lie to the court?  Thankfully, the consensus position (and the correct one, IMHO) is no, it is never acceptable for a laywer to lie in such circumstances (frankly, it's difficult to imagine circumstances, outside of in extremis theoreticals which would ethically permit a lawyer to lie).  That there are lawyers who think it is necessary to have this discussion should give other members of the profession pause - that they need to rely on bizarre constructions such as that which forms the title of this post should give the moving lawyers pause (but appears not to).  As Tarulli states,

While a lawyer should always act in ways that advance the client’s interests, he or she lawyer should also act so as to strengthen public confidence both in the role of the profession and in the judicial system at large.

Indeed.

Succession in Law Firms

Jordan Furlong posted an insightful piece on the motivations (or, properly, the lack thereof) behind the failures of many law firms to handle succession issues well (not "wills and estates", but transitioning power and practices between generations of lawyers).  Furlong posits four vectors, which for lack of a better term I'll call "pecuniary" factors: loss of power; resistance to change; few future leaders (because compensation mechanisms do not encourage handing off key client files); and generational conflicts.

A fifth important vector is a deeper, structural attitudinal problem: law firms (at least that subset of law firms with which I think the discussion is concerned, namely large corporate law firms) haven't yet come to grips with the fact that there is a succession issue, because few of them have come to grips with the fact that they have transformed into quasi-corporate entities.  Despite the headlong plunge into becoming business firms (in the sense that they are now profit-focused undertakings, which is something slightly, but importantly, different from professional associations), lawyers are still uncomfortable with acknowledging that they are now subject to the same concerns that have plagued the modern corporation for its century-long existence.  There is an entire body of learning and class of technocrats (we call them "managers") devoted to managing the challenges which face large corporate entities - yet lawyers are resolutely reticent about drawing on that vast reserve of knowledge and talent.  How many law firms across the country employ non-lawyer management professionals as part of their governance infrastructure?  Canada's largest law firm (with nearly 700 lawyers, to say nothing of non-legal staff) only adopted a corporate governance structure four years ago.  It's only been in the last twenty to thirty years that the "mega-firm" structure has come to the Canadian legal landscape - a lawyer who was in his early forties in the mid-80s is just now getting to the point where retirement and relinquishment of power is an issue.  In short, lawyers are bad at succession planning in the large firm context because they largely haven't had to deal with it before (at least in the context of the current large and diffuse structure that many firms have taken on) and may not yet have realized that they need to at all.

"ensure that the present opportunity to become more seriously democratic is not lost"

As noted over at The Court, the question of the judicial appointments process to the Supreme Court of Canada will shortly be engaged yet again.

"[the] pertinent question is by what process will the selection be made? The answer could have a profound effect on the future of Supreme Court appointments in Canada, and more broadly on the relationship between the judiciary, the legislature and the public."

We should be so lucky.  To my eye, no one in Canada does a better job of articulating the deficiencies in the current appointments process, and explaining the fundamental democratic criteria which mandate an overhaul to make it more participatory, than Allan C. Hutchinson.  This piece, penned nearly three years ago when the appointments issue was being (badly) addressed by the Paul Martin government, is worth clipping and saving - read the whole thing, but here's a taste:

The Canadian process is much more low-key, bureaucratic and impersonal. The Prime Minister still has the final say, but, under the newly-reformed process, he or she has a limited list of candidates to choose from as a result of parliamentary and broader consultations. However, once a decision has been made, there is no opportunity for the public quizzing or rejection of the selected judge. It is a done deal with the empty and belated gesture of the Minister of Justice vicariously facing questions about the new judge.Yet the appearance of democratic input in the Canadian process is belied by the reality of the closed-doors decision-making which actually shapes the process and ultimately controls it.  It is thought that the dignity of the appointment and general judicial process is too seriously jeopardized by a more open process; judges and the legal system generally must be protected from a more robust and public scrutiny which the American appointees and courts must undergo.

This is a sad state of affairs by any lights, let alone in the actual conditions of the contemporary Canadian polity and the increasingly central role of its courts. If democracy is about anything, it is about increasing public involvement in the exercise of political power. While there are a few occasions in which confidentiality and even secrecy are justified, the appointment of powerful and unelected officials is not one of them. Democracy demands more and its citizens should expect more.

Despite Canadian contentions, the Supreme Court of Canada is as political and its decisions as controversial as those of its American counterpart. The divisions may not be as stark, but that is more a matter of style than anything else. Canadians, especially the judicial community, are much more polite and backroom in their disagreement; not washing dirty linen in public remains a guiding principle of too much Canadian politics.

"a modest $400 an hour"

Fair access to the legal system is quickly becoming an abstract ideal, rarely realized.  Good on the Toronto Star for publishing this article:

With the cost of a three-day civil trial estimated at $60,738 – more than a year's income for most households – Canadians are being driven to financial and emotional ruin by a justice system that's priced itself solidly out of reach.

Part of the answer may be making it an ethical obligation to render a certain portion of a lawyer's working hours per year in the service of pro bono matters.  Large Canadian firms, especially compared to their American brethren, do not have the institutional culture in place which encourages and even mandates pro bono work on the part of employees - which is something that should change.

Everyone Submit Your Law School Applications *Right Now*

One of the most enjoyable blogs I've come across recently is abovethelaw.com, which bills itself as a "legal tabloid".  If you don't have a taste for the imbroglios, indiscretions and otherwise enticing behaviour of US lawyers and law firms, it might not be for you.  For most everyone, though, this post should prove an eye-opener. 

Every few years the large US firms go through a salary war, whereby one of the big New York City-based firms (the city being the location of firms which are generally the largest, most profitable and most prestigious in the country) takes the plunge and increases the salaries of first year lawyers (i.e., those who have just graduated from law school).  The salaries of those higher up in the hierarchy are then ratcheted up so as not to get any noses out of joint.  One firm having made the first move, this inevitably results in a domino effect, such that, in order to maintain their competitive standing in a bid to continue to attract the best and brightest (or at least the most masochistic) graduates, all the other big NYC firms raise their salaries.  This then results in a trickle-down effect through the second- and third-tier markets (e.g., Chicago, Boston, Washington, LA, Atlanta, etc.), who need to up their own salaries in order not to be blown out of the water by the larger markets above them. 

The post I linked to provides a handy guide to current base salaries for lawyers in big NYC-based firms (note: "base" means it does not include year-end bonuses).  Hint: it starts with "160" and ends with "000".  A list of LSAT prep courses can be found here.

"you can't quantify that"

The Chief Justice of the Supreme Court of Canada, to her immense credit, has made a habit lately of reminding the legal profession that it is rapidly pricing itself out of the market for ordinary Canadians.  The justice system, whether civil or criminal, but especially civil, is becoming the domain of the wealthy and the indigent - the "average" Canadian usually can't afford to retain counsel (or can only do so at great personal economic disadvantage) to assist in either enforcing their rights or settling disputes.  A stark example is offered today, buried in the news of the impending announcement of Maher Arar's compensation from the Canadian government:

The package includes personal compensation of more than $10 million, a $2-million payment for Arar's legal fees, and an official apology, CTV's Ottawa Bureau Chief Robert Fife reports.

Think about that for a moment.  Your (Liberal, for those in the habit of forgetting) government gets you arrested, deported and tortured, and in order to pursue your claim against them, you're forced to ring up two million dollars in legal fees.  That's... lunacy.  (If memory serves, Brian Mulroney faced a similar legal tab when the (Liberal) government dragged its heels on apologizing to him.)  The ultimate danger is that people, unable to access the courts, resort to other mans of resolving  their disputes.

A Credit to the Profession

Good on them:

A lawyer for the virtual world "Second Life" has responded to a parody with something that's quite different from the usual corporate cease-and-desist letter.

... "Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody," Yoon wrote. "Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception."

"neither an idle nor a rhetorical one"

"Why does anybody hire transactional lawyers?"  That's the question posed by Stephen Bainbridge in this story at TCS Daily.  This seems to be his conclusion:

By selecting the most advantageous structure for a given transaction, and ensuring that courts and regulators will respect that choice, the transactional lawyer reduces the cost of complying with the law and allows the parties to keep more of their gains.

I think that's part of the role that transactional lawyers (of which I count myself one) play, but that is ultimately just a subset of our primary function: to ensure that the interests of our clients are protected.  Everything else flows from that.  Bainbridge provides the following quote:

In his book, The Terrible Truth About Lawyers, Mark H. McCormack, founder of the International Management Group, a major sports and entertainment agency, wrote that "it's the lawyers who: (1) gum up the works; (2) get people mad at each other; (3) make business procedures more expensive than they need to be; and now and then deep-six what had seemed like a perfectly workable arrangement. Accordingly, I would say that the best way to deal with lawyers is not to deal with them at all."

That's certainly one approach.  But the truth is to be found in his item (1) and final statement, with the emphasis on "seemed like a perfectly workable arrangement".  Emphasis on the "seemed" - it the transactional lawyers job to assess the "perfectly workable arrangement" cooked up by their client(s) and determine whether it is in fact "perfectly workable".  Gently pointing out the elements that are not "perfectly workable" can appear to be "gumming up the works", but is more likely to be the lawyer doing their job.