Legal Feeds Blog
CALGARY — Having tools to demonstrate the value legal brings to an organization can help in-house counsel tell their story and illustrate their contribution in an appealing way to a chief financial or operating officer.
|Bindu Cudjoe and Kristi Lalach are all about the data. (Photo: Jennifer Brown)|
Speaking Monday at the Alberta chapter of the Association of Corporate Counsel’s Law Department Leadership 2.0 conference, Kristi Lalach, vice president legal and compliance, FGL Sports Ltd & Mark’s Work Wearhouse Ltd., and Bindu Cudjoe, deputy general counsel and chief administrative officer at Bank of Montreal, addressed the ways they track what their departments are doing internally and with external counsel.
Lalach, based in Calgary, says tools such as billing and matter management, which FGL and Mark’s recently implemented, can help justify hiring and growth opportunities in a legal department. For example, engaging a real estate firm on a regular basis may signal the need for an additional person internally in that area of law.
“It gives me oversight and transparency. It allows me to understand what my lawyers are doing, what our compliance people are doing, and frankly it allows me to understand those parts of the business that engage external counsel themselves in terms of what they’re looking for advice on,” said Lalach.
“It also keeps the law firms honest, frankly. It’s a lot easier for me to dig down into the descriptors when I have it on an e-billing system,” says Lalach.
BMO has had an e-billing system for about three years that to-date has been largely used for work with external counsel. BMO bolted its e-billing system onto the accounts payable one to take in all things tagged as legal spend.
Where Cudjoe sees the bank taking its system to the next level is to use it to create “discipline for internal lawyers.” BMO has almost 200 lawyers globally — 120 in Toronto in Montreal. Its system requires there be a budget before the law firm can submit an invoice.
“One place for us to go is to ask how accurate were the budgets? Who is following the system, and who is doing it better?” she said.
The bank is also using the system for matter management to see how files are staffed and managed internally or externally.
Lalach also likes that with the e-billing system the detailed bills come to her and not directly to the accounts payable department.
“I felt there was a risk of privilege,” she said. “That doesn’t happen anymore because once I sign off the accounts payable department doesn’t see the long descriptors on the bills. That’s giving me a lot of comfort.”
Once you are getting numbers out of a system the next stage is often using the metrics to benchmark. Cudjoe noted a good place to start is using data to benchmark the department over time.
BMO compares data from the accounts payable department to the numbers in the e-billing system.
“There is no one system that puts those numbers together so it’s up to us to build a story that says, ‘This is what internal legal cost you over time and here is what external cost and the two together comprise an aggregate,’” she said. “I think you have to trust the data will tell you a story but you have to be open to interpreting it.”
The systems can also help when in-house counsel are confronted with the common refrain that “legal costs so much” or “legal keeps growing.”
“We measure things like the aggregate quantum of legal spend over a particular period of time and we break it down by line of business. We compare how much we spent externally with costs internally (headcount/salary/benefits),” she said.
While she doesn’t advocate for time tracking internally in the legal department, Cudjoe says there is important information to be gleaned from using systems to look at where resources are being used.
“I urge you to dig in and look at what are you area doing internally and where you are spending your time,” she said. “Are you actually able to get to projects or are you responding to fires? Maybe you are prioritizing things not important to the business.”
Be prepared that your metrics don’t back the story you’ve been telling, she added.
“Not because you were trying to be disingenuous but sometimes the numbers don’t hold true.”
For example, foreign exchange forecasts can throw off legal costs if you are paying firms in U.S. dollars. But that can prompt a question about whether you have the right mix of external Canadian versus American lawyers working on a matter.
“The numbers are really useful but they’re not a panacea. You do have to think critically about how you’re using them and who sees them,” she said.
The panel also explored the challenges of managing external counsel including having a common approach to risk management, understanding organizational values, and how to better handle the cost of litigation.
“There are things we stand for at FGL and at Mark’s that we can’t bend on — competition law is one of them. We are willing to take some risks in other areas. So that’s why a law firm knowing what we stand for is important to me because I don’t have time to read opinions that aren’t aligned with that,” said Lalach.
Cudjoe also noted the importance of “tell your story regularly.”
“Lawyers are well placed to tell that story thoughtfully, strategically, responding to the circumstances. So don’t get in the way — they are the facts behind your beautifully crafted speech.”
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Toronto-area lawyers are calling for changes to the way doctors are punished for sexual abuse after a doctor who groped four female patients will be allowed to continue to practise.
|Groping is not spelled out as an offence doctors can lose their licence for. (Photo: Shutterstock)|
In 2015, a discipline committee for the College of Physicians and Surgeons of Ontario found Peirovy had sexually abused four patients. In a summary, the discipline committee outlined how Peirovy had inappropriately touched the breasts of three patients and put his stethoscope on another patient’s nipples, even though no clinical reason existed to do this.
As a result of the sexual abuse, Peirovy lost his registration for six months, will now have to have a practice monitor with him in the room when he is treating female patients for at least a year, and have to post a sign stating he cannot be alone in any examination or consulting room with a female patient.
Amani Oakley, a senior partner with Oakley and Oakley PC, says it’s “very disturbing” a doctor like Peirovy can continue practising. In her opinion, the discipline committee has the discretion to pull a doctor’s licence for groping.
“It is obvious that the legislation quite clearly gives power to the discipline committee to strip a doctor of his licence to practise if he has committed an act of professional misconduct, and sexual abuse is an act of professional misconduct,” she says.
Oakley refers to the Health Professions Procedural Code Schedule 2, s. 51(5), which falls under the Regulated Health Professions Act. It says a health professional must have his or her certificate of registration revoked if he or she sexually abuses a patient, and is involved in certain types of physical contact, like sexual intercourse or masturbation.
However, the section does not spell out that a certificate should be revoked if groping occurs.
“Sadly, this case points to a problem I have commonly seen with respect to the actions of the CPSO and the discipline committee,” says Oakley. “Time and again, they decline to act to protect the public, despite having authority already granted to them, and they seek to hide behind an argument that they need more explicitly directed powers. They don’t.
“Sadly, this appears to be another example of a wrong-headed refusal to step forward on behalf of a vulnerable public, despite the fact that the government has provided the CPSO and the discipline committee with more than ample tools to protect patients sexually groped by a physician.”
Paul Harte, of the Paul Harte PC, says s. 51 should be amended, and that “sexual abuse is a fundamental breach of a physician’s fiduciary obligations.”
“What’s frustrating is, it’s such an easy fix,” he says.
“What they need to do is take away those specified acts, and simply make it sexual abuse, so any physical contact of a sexual nature should be sexual abuse, and where a committee finds sexual abuse, there should be an automatic revocation.”
Kathryn Clarke, CPSO spokeswoman, says the college is reviewing the decision in the Peirovy case and “considering whether to appeal the penalty in this case.”
Clarke says there is “30 days from the date of the decision to decide whether or not to appeal.”
“The college’s prosecutor sought revocation in this case, and submitted that in addition to revocation, Dr. Peirovy should also be reprimanded, that he reimburse the college for funding for counselling provided to patients, that he post security to satisfy these obligations, and that he pay the costs of the hearing,” she says in an e-mail to Legal Feeds.
She says the college “is disappointed in the discipline panel’s decision not to revoke Dr. Peirovy’s licence.”
“Our governing council supports revisions to the legislation that would require mandatory revocation in any case where physical sexual contact with a patient is proven to have occurred . . . presently, mandatory revocation applies only to sexual acts specified in the legislation.”
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- Organization has immunity under international agreements
Employees of the World Bank will not have to testify in the SNC-Lavalin bribery case, nor will the organization be required to produce documents that could aid in the defence of former executives charged in the scandal.
|The Supreme Court of Canada ruled the World Bank does not have to hand over documents. (Photo: Reuters)|
The defendants were challenging the admissibility of wiretap evidence. After the investigating RCMP officer’s e-mails were lost (due to a “computer problem”), defence sought testimony from World Bank employees who had tipped the RCMP off to the alleged corruption around a Bangladeshi construction bid.
The World Bank had barred SNC-Lavalin from participating in World Bank-funded projects for 10 years after conducting an investigation into corruption allegations concerning the engineering firm.
Despite international agreements that grant the World Bank immunity from court processes, the trial judge found that the World Bank had waived its right by providing the documents to the RCMP.
Today, in a unanimous decision co-written by justices Michael Moldaver and Suzanne Côté, the Supreme Court set aside the production order — ruling that the World Bank’s co-operation with Canadian authorities does not amount to a waiver of its immunity.
The decision finds clear immunity provisions under the World Bank’s Articles of Agreement:
“The immunity outlined in s. 5 shields the entire collection of stored documents of the IBRD and the IDA [divisions of the World Bank] from both search and seizure and from compelled production. This broader interpretation is consistent with the plain and ordinary meaning of the terms of s. 5 and is in harmony with its object and purpose. Partial voluntary disclosure of some documents by the World Bank Group does not amount to a waiver of this immunity. Indeed, the archival immunity is not subject to waiver.”
“These immunities have been implemented in Canadian law by two Orders in Council, and the Articles of Agreement of the IBRD and the IDA have been approved by Parliament in their entirety through the Bretton Woods and Related Agreements Act.”
Indeed, even if the World Bank did not have immunity under international agreements, the SCC ruled that the application to challenge the wiretap — known as a Garofoli application — was erroneously assessed at trial.
The defence had argued that the investigating officer’s lost emails may have revealed information that would render the wiretap illegal. But the SCC ruled that the burden of proof rested with the accused, and a theoretical connection wasn’t enough to show relevance between the production order and the wiretap authorization.
“While the documents sought may be relevant to the ultimate truth of the allegations in the affidavits,” the decision states, “they are not reasonably likely to be of probative value to what [the investigating officer] knew or ought to have known since he did not consult them. The accused have not shown that it was unreasonable for him to rely on the information he received from the [World Bank’s investigative arm] and other officers.”
The World Bank welcomed Friday’s decision.
“Today’s announcement is a vote of support to the World Bank’s anti-corruption work and its cooperation with member countries to ensure that development projects are implemented with integrity,” said Leonard Frank McCarthy, World Bank Integrity Vice President.
With files from Reuters.
The Canadian Bar Association-British Columbia branch’s Rural Education and Access to Lawyer Initiative program is getting creative when it comes to placing students in small or rural areas where there is an acute need for lawyers.
|In some rural areas of B.C. there’s only one lawyer for every 10,000 residents. (Image: Shutterstock)|
The difficulty faced by programs such as REAL and articling students wanting to practise in small towns is that many of the existing lawyers in underserved smaller or rural areas have moved into semi-retirement as the greying of the bar gains momentum.
“They are winding down their practice for whatever reason,” she says.
The average age of B.C. lawyers is approximately 50, according to REAL.
“But in smaller communities and rural areas, the age is significantly higher with the average age in many communities in the 60s (with some as high as 70 years old),” a fact sheet points out.
McCue says the Law Society of British Columbia requires students have full-time supervision. One way to ensure that, but work within the reality of the demographics occurring in communities, is to find lawyers willing to share a student. McCue says she is also open to hearing from lawyers who want to share a third-year student looking to article so she can help in bringing those lawyers together.
Annother scenario ripe for student sharing is where one lawyer does mainly litigation while another is a solicitor and each party might not feel they are giving a student the well-rounded practical experience a student should have.
“But, we put them together, it is a marriage made in heaven,” she says.
There are approximately 11,000 B.C. practising lawyers in the province but 86 per cent are located in Victoria, Vancouver, and New Westminster. The REAL program has produced a list of B.C. communities considered high-need and requiring lawyers.
LSBC statistics estimate there is one lawyer for every 450 people on average in the province. But, in smaller or rural communities that figure is one lawyer for every 1,000 persons.
The REAL program’s high-need list of communities (available here) includes towns where there is less than one lawyer per 1,000 residents. McCue says in some communities, the figures can be as low as one lawyer for 10,000 people.
McCue said that the REAL program focuses on second year students, providing funding for lawyers to take on the students; however it can provide information and support for third year students looking to article in a smaller non-urban area as well.
McCue encourages first-year students to visit smaller communities in need of lawyers so they have an idea of the lifestyle and opportunities that such a community can offer.
She encourages second-year students, and articling students, to also visit communities and talk to members of the legal community there. She says often rural lawyers want to meet students in person before hiring them to determine if they will fit into the firm.
She says over time, the REAL program has become more selective in its choice of candidates as is now focusing on retention rather than simply placement because of the growing need to provide lawyers in these high-need areas.
A total of 100 students have been placed since the program began but not all have stayed in smaller communities.
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The Law Society of Upper Canada’s governing body will vote on approving a new mental health strategy at its monthly meeting tomorrow.
|Former OBA president Orlando Da Silva calls the LSUC’s mental health strategy ‘leadership’ not ‘lip service.’ (Image: Shutterstock)|
The proposed strategy also recommends looking into adopting diversion discipline programs for lawyers and paralegals with mental health issues. In Nova Scotia, for example, the barristers’ society’s Fitness to Practise program creates a separate hearing panel for licensees who suffer from mental health issues.
If the mental health strategy is implemented, the law society will also consider conducting capacity hearings, which determine whether a lawyer is mentally fit to practise law, in the absence of the public.
“The regulator is not an expert in mental health and cannot treat or remedy the illnesses or addictions of its licensees. It should, instead, have in place tools that will allow for diversion in the appropriate circumstances, with appropriate confidentiality protocols,” says the report.
In an e-mail to Legal Feeds, Doron Gold, staff clinician at Homewood Health, said he supports diversion programs and more discretion for capacity hearings.
“The irony we often face is that the people who most need help for issues that are not based in bad character or ill intention are the least open to admitting these conditions due to stigma and the fear that the regulator will brand them as unfit and beyond help,” said Gold.
“The more informed and discreet the regulator becomes around these issues, the better, and ultimately, more effective the process will be. We don’t want people who, if given access to appropriate assistance could practise well, avoid that assistance, and simply be labeled unfit or not entitled to practise,” he added.
Former Ontario Bar Association president Orlando Da Silva, who used his leadership at the OBA to bring attention to mental illness in the legal profession, says the proposed strategy is sign that the regulator has listened to advocates like him.
If the plan is implemented, “I think the law society will have succeeded in moving mountains,” says Da Silva.
“It will be a sea change in the way lawyers address their own mental health issues and it will be a sigh of relief for those who want to talk but are afraid to because of the stigma.”
Da Silva has spoken openly about his own struggles with mental illness, but “I had never expected to see a mental health strategy like this in my lifetime as a lawyer,” he says. “This doesn’t look like lip service to me; this looks like leadership.”
The proposed mental health strategy comes amid growing evidence that lawyers and other legal professionals may be at a higher risk of developing mental illness and addictions.
“The culture of and stressors on the legal professions raise barriers to openly addressing these issues for those who may be affected by them and those with whom they work and interact,” the law society report’s executive summary reads.
“The stigma surrounding mental illness and addictions, the too common confusion of diagnosis with impairment and the concerns that careers will be permanently and negatively affected by disclosure have a particular impact on lawyers’ and paralegals’ willingness to reveal such illness or addictions.”
If Convocations approves the strategy, the law society will provide “specialized training” for staff who interact with licensees on mental illness and addictions. Gold calls it a “fantastic idea” that’s long overdue.
“Note, for instance, the emphasis in the report on not assuming that unresponsiveness by a member under investigation amounts to ungovernability,” said Gold, who brought up this issue when he was consulted by the law society’s mental health task force.
“Often, unresponsiveness by members is simply overwhelming anxiety leading to avoidance of even opening law society correspondence. It is not ill intent but a kind of psychological paralysis.”
Also part of the strategy is looking into whether the law society should create a mental health model policy to educate law firms and other employers on the tools to promoting mental health and identifying “possible systemic causes within the legal professions’ culture and employment practices that engender or exacerbate these issues.”
Update April 28: The LSUC approved the new mental health strategy at its meeting of Convcation.
- There’s money to be gained for everyone in focusing on serving the public’s legal needs in a variety of ways
When asked if the legal profession can move into the future without external investment, Law Society of Upper Canada CEO Robert Lapper was unequivocal.
|Non-lawyer investment won't mean the end of the profession but it does mean more opportunity, according to the panel.|
He was responding to an audience question during a session on the new realities of practising law at The New Frontier of Legal Innovation summit held at MaRS in Toronto yesterday.
Lapper and Chris Bentley, the executive director of Ryerson Unversity’s Legal Innovation Zone and Law Practice Program, didn’t mince words during their panel discussion.
Lapper noted that while the discussion of alternative business structures is currently somewhat on the backburner at the LSUC, it’s still on the table. And he is quite insistent that for the law society to meet its responsibilities of regulating in the public interest as well as ensuring access to justice, that the profession is going to be forced to open up so non-lawyers can invest in and provide legal services to the public.
“We haven’t got the balance right yet. We are late to the party,” he said. “Our regulatory system is largely still a 19th century model of a sole practitioner with a quill pen in a country law office.”
Bentley’s view is equally unambiguous: “Within 18 months I see one province opening up to ABS and then it’s game over for everyone else.”
There is going to be “an economic reality that is going to require investment by non-lawyers” being driven by innovators and entrepreuners who don’t want lawyers to control what they’re doing, he said.
And they are the ones who are going to start addressing the 85 per cent of Canadians’ legal needs that aren’t being met.
“Where is the duty and obligation to start providing services to those 85 per cent?” asked Lapper.
Bentley said, “We’re leaving the age of the provider and we are all part of the age of the consumer.”
Consumers want solutions, transparent approaches, price certainty, and affordability but “we have delivered process, complexity, uncertain price, lack of affordability,” he said.
Getting there is not that hard, he pointed out. There’s also money in it.
“What is missed by most lawyers is that many of those people have money. They can afford some legal solutions — it it was affordable and looked like a legal solution,” said Bentley. “They don’t want to pay for process.”
He added, “I’m not sure there’s an appreciation of how much money is on the table for lawyers. How much the opportunity is for individual lawyers and how quickly that is going to be filled by others if lawyers don’t do it.”
And technology is a big part of what can drive change, they said.
Many solutions the public are looking for don’t necessarily involve courts but will still require legal assistance. Bentley agreed technology can boost access to justice but it doesn’t mean the end of lawyers.
He pointed to online dispute resolution that is being piloted in British Columbia and added England is also doing it, particularly in family court.
“Out of court resolution does not mean no lawyers,” Bentley told the packed room.
That can mean dealing with issues both before and outside of court. There are solutions that are relatively easy, he said, including mandatory information that is provided by the courts; an easy screening process to move people into streams; and even a triage system.
“You can change positively the outcome in the family court for more than half of the people within 90 days,” he stated. “I call on the law society to take the lead on this and push it as hard as we can.”
Lapper responded that they are in “violent agreement” about the need for change, noting the LSUC along with the Ministry of the Attorney General and former chief justice Annemarie E. Bonkalo are looking into the scope of practice and more.
“What we hope will come out of that is what info should we have at the start of a family law issue and who should and could provide it,” he said.
Part of the problem, said Lapper, is lawyers “get a bit afraid of doing that” because they realize there are many pieces that might not have to be done by lawyers and that’s frightening.
As Bentley noted: “Law is not so different as we like to think. We refused to look at law as the provision of service or information. We have treated it as journey that you have to pay for each step. We need to reinvision it and how the consumer gets the results.”
For more on the lively discussion about the future of law, technology, and innovation from The New Frontier of Legal Innovation Summit, check out the #lextech16 hashtag on Twitter.
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