If a weekend fire sale, backed by loans from the government, of one venerable U.S. financial institution to another — an institution that was worth $170 a share one year ago but went for $2 a share — is not a sign of economic volatility, then what is? The sale of Bear Stearns to JPMorgan Chase was done over a weekend and completed swiftly before the markets opened the following Monday morning. Over the course of that same mid-March weekend, the U.S. Federal Reserve launched efforts on the Sunday to staunch a worldwide stock sell-off, putting in place a series of emergency measures, including a cut to the interest rate at which it lends to banks, in the hopes of shoring up confidence in the credit markets. But there was no way to cushion the blow as global markets took a tumble and the U.S. suffered another hit. The episode confirmed investors’ worst fears about the fragile state of the financial economy.
And it’s within that environment, in this month’s cover story, “Dare we say the ‘R’ word,” Canadian Lawyer looks at what the next year holds for the legal businesses in this country. It would seem that predictions for the business of law are not as dire as they are for many other areas of business in this country, including the financial and manufacturing sectors. We look at various sectors and how Canadian lawyers predict the future will play out.
In M&A, the main prediction appears to be that while business may slow down somewhat the most noticeable change will be a shift in the players away from financial buyers to strategic and foreign buyers. Prices will come down allowing those other players to get more involved in transactions. Law firms may face slower periods but our experts don’t foresee any precipitous drop in work. In banking and financing, the size of deals may not be as dramatic as in the past few years but there will be much work on the ground. In the Bear Stearns sale, reports say JPMorgan has already set aside $6 billion to cover potential litigation. Commercial real estate and construction in Canada is also seeing a shift similar to that occurring in M&As: the players are changing but lawyers will still have much to do. Perhaps the only area that may see a big rise this year is bankruptcy and insolvencies. In part due to to the Canadian dollar’s strength, and the resulting lowering of competitiveness of some homegrown industries, mixed with general global financial uneasiness, it will be a tough year for many businesses that can’t adjust. On the bright side, however, our experts say most mid-size Canadian businesses have already adjusted and should remain relatively stable.
On top of the general market and business uncertainty, we also see in our report on energy and the environment, “To carbon tax or not to carbon tax,” how environmental issues are going to affect business. B.C. has just introduced a carbon tax, Quebec already has one, but there is no national strategy on whether to impose a Canada-wide carbon tax (not if the Harper Conservatives have their way), a cap-and-trade system, or a combination of the two. What Canadian business doesn’t have right now is any idea which road these regulations will go down — or even when that might happen — which makes long-term planning a bit more of a crapshoot than long-term planning is by nature.
It will be an interesting year for business and the markets, both in Canada and the world, but the good news is that lawyers don’t see doom and gloom for their businesses in these uncertain times.
This issue of Canadian Lawyer is all about technology and the many ways it impacts the practice and business of law. It goes beyond having BlackBerrys and remote access to your desktops; technology has revolutionized the practice of law like it has every other part of life. I have just returned from LegalTech in New York City, a massive trade show of, you guessed it, legal technology. There was everything but the kitchen sink — but, rest assured, if there’s a way to have the sink make your law firm more profitable, it’ll be there next year.
Much of what was on display in the three floors of techno wonderland related to e-discovery and document-management software and processes. There was also a fair amount of knowledge-management software as well as general business software that keeps track of clients and accounting. The vendors tout their products as cost-reducing, maximizing staff productivity, revolutionary, exceptional value, time-saving, and on and on. They all seem wonderful . . . and expensive.
You would automatically think that knowledge management, business analytics, and such would be the domain of large firms with deep pockets and technology departments. Whereas accounting software and some client-management systems would fit with any size firm. The reality is that many of the technology companies I spoke with at LegalTech, even the ones offering high-end business analytics and comprehensive document-management systems, are able to offer smaller firms their services at prices that are affordable.
Big firms are working with these tech companies all the time and probably have any number of their systems in place to do any number of jobs. Small firms and sole practitioners, however, tend not to have much more than perhaps PC Law, and maybe some accounting programs. But even the smallest firms can benefit from these offerings. It’s hard to believe that many real estate practitioners in Canada still rely on fax machines to communicate with banks regarding mortgage transactions. Our story “Bye-bye fax machine,” on page 19, shows how one computer program (and a company with the savvy to know the niches to fill) can completely change the way an office works.
The stories are anecdotal, of course, but I’ve heard horror stories about small firms that require lawyers to make lists of all sorts of things, often handwritten, to hand to the partner/owner at monthly or weekly lawyer meetings. Other firms don’t use any sort of client-management software and everything is still done entirely in paper files. What happens when a legal assistant takes it home by mistake and forgets to bring it back? These firms have no way to really judge, other than their basic accounting practices, how lawyers are performing. There’s no way to know what other lawyers on the firm are working on. Imagine, even in a small firm, because even they have hundreds, even thousands, of client files, trying to do any kind of conflict check.
So the moral of this tale: technology is good; no matter what size your firm, there are lots of options for making it more efficient with better communication between staff. At the end of the day, it leaves more time to serve clients and will also make you better in the way you serve clients. Look into what’s out there and take the plunge.
This month’s cover story is a cautionary tale but also a chance to openly discuss issues facing many lawyers across Canada, the majority of whom work alone or in small firms. Anyone practising law knows it’s no walk in the park. Law is a stressful profession bookended by the need to stay solvent on one end and the demands of clients on the other. For lawyers in larger firms, it is somewhat easier to manage than it is for those who practise alone or in smaller firms. Large firms have not only more lawyers to turn to if you’ve got questions or problems but many have built-in support mechanisms, educational opportunities, and even accounting and human resource departments to do a lot of the basics. That’s not the case for many other lawyers and they do run into problems trying to juggle all their various responsibilities.
But it’s more than just the difficulties of the day-to-day running of a law practice — it’s the overwhelming stress of practice in general. I don’t know a single lawyer who doesn’t know at least one other lawyer who has problems with drugs or alcohol or even both. Long hours, high expectations, hefty workloads, and complex work create a perfect storm for substance abuse. What may start out as the occasional drink after work can quickly turn into a daily need for alcohol or something stronger to take the edge off. In this, the size of the law firm does not matter. Stress is stress and the search for a crutch knows no limits.
In the good old days, which weren’t really all that long ago, colleagues often knew about another lawyer’s drug or alcohol problem but not much was said about it, a few friends may have tried to help but the problem was kept hush hush. But as discipline records at the law societies will show, in the end, it’s often personal problems that start to hurt the law practice and frequently end in letters from the law society or even disbarment. It’s more likely to be a marriage breakdown or similar personal problem than any real nefarious behaviour that is at the root of what sends many a lawyer in the vortex of disciplinary proceedings.
In recent years, there has been a much greater realization of these problems within the legal profession in Canada. We saw the creation of many lawyer assistance groups across the country. Most started simply as drug- and alcohol-support organizations but they’ve grown into much more. For lawyers who are having trouble in certain areas of their practice, they can access peer support networks to help with, say, accounting problems or complicated cases. For those having emotional or substance-abuse problems, there is access to professional counsellors in every province across the country. The Canadian Bar Association even has a section that provides education, support, and expertise to strengthen these provincial lawyer assistance programs.
Help is out there. It’s up to lawyers to recognize when they’re having problems and reach out. But there’s just as much of an onus on friends and colleagues to reach out and offer a helping hand or a bit of guidance to keep their lawyer pals off the radar of the law societies’ discipline departments.
To co-opt a catchphrase from the Bush administration: no lawyer should be left behind.
Conflicts are a messy business, on every level these days, it seems. While conflict of interest rules underpin the justice system and are at the heart of the practice of law, no one ever dreamed that complying with them would become so onerous and so costly. And it’s not just a big-firm problem. Conflict-related concerns affect law firms of all sizes in a wide range of practice areas. They also no longer occupy the periphery of practice with a growing number of firms assigning a partner or entire groups of lawyers to manage — or is that avoid — conflicts for clients and the firm.
Following conflict rules, which includes their interpretation through a number of Supreme Court of Canada decisions, is absolutely imperative, as an error could lead to damaged client relationships, increased costs, delays, further lawsuits, and even disciplinary action against practitioners. The problem is not that lawyers have to abide by conflict rules, it’s that the rules, and again their interpretation, are complex and are imposing a substantial burden on lawyers, firms, the courts, and even clients.
For a few years, the increasing complexity, cost, and effort required to comply with conflict of interest rules have weighed heavily on law firm manager’s minds. In March 2007, the Canadian Bar Association created a task force to examine the issue and develop a set of model rules and materials to make the process of managing conflicts easier and practical.
The task force is led by Scott Jolliffe, the managing partner of Gowlings, who has been on the forefront of the issue for years. He’s joined on the panel by 14 lawyers who represent law firms across the country, in-house counsel, law societies, and legal insurers — all of whom have varying but interwoven interests in making the application of the principles of conflict of interest more effective. While the task force can’t create enforceable rules, its aim is to develop a set of widely accepted model rules that law societies will incorporate into their rules of professional conduct.
For the first six months, the task force worked together to identify the most prominent areas of concerns and in October released its consultation and background papers. They’re online at www.cba.org/conflicts. The consultation paper has 15 questions that address loyalty requirements and their interpretation, information-sharing within firms, retainer letters, and the problematic challenges posed by current conflict rules.
As already stated, conflict rules don’t just apply to top-tier firms. Mid-size firms, lawyers in smaller communities, and their clients are all affected by the rules. They also affect lawyers’ abilities to move between firms, not to mention firms that have multiple offices that operate in several jurisdictions.
There aren’t likely to be many lawyers who are not touched one way or another by aspects of today’s complex web of conflict rules, which makes it so much more important for every lawyer and every level of practice in this country to take part in the task force’s consultations. The task force is in the throes of its consultation period. The deadline for sending comments is Nov. 29 and Canadian Lawyer encourages all Canadian lawyers to participate by visiting the task force’s web site to read the consultation paper and complete the questionnaire. More than any other issue facing the profession, the miasma of conflict rules and interpretations needs clarity in order to be effective and protect lawyers and clients. Make your voice heard.
The issue of securities regulation and enforcement has been big news in Canada over the last few months. It appears that the debate over whether this country needs a single securities regulator will never be resolved.
Federal Finance Minister Jim Flaherty has once again stated he’s putting together a panel to draft legislation for a national securities regulator. The panel was scheduled to meet before the end of 2007, but by press time no moves had been made. While Flaherty is pushing for a single regulator, Quebec, most vocally, and a number of other provinces say they are opposed.
“A common securities regulator does not mean an Ontario or Toronto-oriented regulatory body,” Flaherty told the Senate standing committee on banking, trade and commerce last month. “That is what we have now . . . . We have an Ontario-dominated securities regulatory system. For those in favour of an Ontario-dominated system, they should permit the current system to remain. For those who want a distribution of powers, they should support a common securities regulator in Canada.”
The debate rages on and, as former Ontario Securities Commission chairman Jim Baillie suggests in our cover story this month, Canada will still look like a bunch of Keystone Cops on the international enforcement scene with its slew of provincial regulators instead of one voice for the country.
But even if Canada never achieved national securities regulatory unity, the many parts of it that now do exist have to do better at arresting corporate crime. Again, our international reputation depends on it. As one recent newspaper article about lax enforcement noted, Canada is not just considered an “enforcement-free zone” where people get away with white-collar crime, but a place where they can profit dearly from such crimes. That’s not a reputation conducive to building a strong economy.
There has been a lot of chin wagging about the differences between Canadian and U.S. treatment of such crimes and it is true that in many ways the patchwork, some might even say haphazard, system in this country is to blame. But there is more to it than that. As the cover story notes, there is a bit of a cozy relationship between the OSC, in particular, and the lawyers who both prosecute regulatory matters and represent or work for the companies and/or directors involved in many of these cases.
On the criminal end of it, there are problems with the Integrated Market Enforcement Teams set up to investigate criminal activities on the markets. A report on IMETs from Nick LePan made public last month points to all sorts of problems, including a lack of prosecutors well versed in securities law. Not to mention that with 13 different regulators across the country, timeliness goes out the window in cases that may involve federal prosecutors and one or more provincial Crowns.
Fighting fraud is not a high priority either within the RCMP or the Public Prosecution Service of Canada, says LePan, and that has to change. No one is complaining about lack of resources; IMET and the OSC have enough to do what they need to, but the lack of co-ordination, complicated multi-jurisdictional regulatory system, and cozy relationships among securities lawyers are making a bit of a mockery of the securities enforcement system in this country. A single regulator would help for sure. But timeliness and co-operation leading to some real results could also go a long way to comforting investors, particularly those who in some cases have been waiting decades for the resolution of cases in which they’ve been bilked of their hard-earned money.