The Power of Perspectives

The Canadian Bar Association

National Blog

ABS trials and tribulations

By National November 27 2015 27 November 2015

    Catherine Baksi reports that, four years after their first splash, alternative business structures still only represent 5 per cent of the legal services market in England & Wales. Why the slow transition away from more traditional law firms?

    As Irwin Mitchell’s Mr Tucker says, the interest of investors and others outside the legal profession has been “more muted than it might have been” due to the recession, which has meant ABSs have “not developed to the point where they might otherwise”.

    Developing a large consumer legal brand, says Mr Williams, takes deep pockets.  Slater & Gordon has tried to establish itself as such, with some success. According to its own internally commissioned research, 24 per cent of people in the UK know of it.

    Marketing network Quality Solicitors, founded in 2008, has attempted to do the same thing, without the need for its members to become ABSs. The group has 100 partner firms operating from 200 different locations across the UK.

    Its chief executive Eddie Ross says the challenge in developing a consumer legal brand is the “finite number of consumers” looking for legal services at any one time. “Research has shown that as little as 28 per cent of consumers will have had a need for legal services within the last 12 months,” he says.

    John Hyde, addressing some of the problems that have beset major ABS players such as Parabis, QualitySolicitors and Slater & Gordon, looks at the bigger picture:

    Read More

    Transparency in international arbitration: Missing the point?

    By National November 25 2015 25 November 2015

      An upcoming article penned by Emilie Hafner-Burton, Sergio Puig, and David Victor will explore the significance of transparency in international arbitration. As Puig notes, reform in this area has focused in large measure on procedural issues, rather than on the underlying incentives that motivate the preference for secrecy.

      Our paper is not a plea against transparency reforms. Instead, we argue that transparency reforms should look also at the rich history of debate regarding settlements within national legal systems. In fact, using statistical models we demonstrate that it is possible to identify historical patterns to explain why information is concealed in certain types of disputes. This suggests that the theoretical literature about the incentives for settlement within national legal systems is a reasonable starting point for a wave of new empirical scholarship on the question of secrecy internationally.

      Unlike Mistelis we believe that the high level of secrecy in ISDS is problematic, largely because it has created a spiral in which parties face ever-stronger incentives to keep outcomes secret. This spiral is bad news for the legitimacy of international investment law, as its expanding scope and depth are creating stronger public needs for disclosing the issues addressed in such disputes as well as how governments conclude such disputes. Settlement occupies a pivotal role in this crisis because it is the mechanism of choice for litigants who want secret outcomes—exactly what Owen Fiss argued in the now iconic Against Settlement and the rich literature that resulted from his provocation against private settlements. Re-wiring the incentives and procedures could help fix the problem, but halting settlements is neither feasible nor wise since full transparency can impede some efficient outcomes. Hence, we argue for policy reforms that lead to disciplined settlements or, in plain English, against secret settlement.

      The issue is particularly timely. Recently, the European Commission finalized its proposal to reconfigure the international arbitration mechanisms for the Transatlantic Trade and Investment Partnership:

      Read More

      Alberta's climate plan: Is it enough (or too much?)

      By National November 24 2015 24 November 2015

        Andrew Coyne applauds Alberta’s recently announced plan to phase out coal and phase in a $30 per tonne carbon tax, but with a major caveat:

        Had the government limited itself to a carbon tax, with rebates for low-income households and transitional assistance for workers in particularly carbon-intensive industries, the policy would have fully deserved the praise it has been getting. Had it, indeed, been introduced as a replacement for the regulatory and subsidy schemes already enacted in the name of “fighting climate change,” at high cost and negligible benefit — for the purpose of both is not to reveal the costs of economic choices, as prices do, but to disguise or even offset them — it might even qualify for the revolutionary label.

        But the carbon tax will not be in place of, but in addition to existing policies. And it will not come in on its own, but in convoy with a flotilla of new regulatory and subsidy schemes — a mandated 45 per cent reduction in methane emissions by 2025; a mandated phase-out of coal-fired electricity by 2030; a “hard cap” on emissions from the oilsands, at 100 megatonnes; vast new subsidies for public transit and renewable energy and energy efficiency programs of various kinds — all of them unnecessary, some of them actively harmful.

        Allison Sears has an insightful post where she brings some perspective to the timing of Premier Notley’s announcement (on the eve of the First Ministers' meeting) and the release of her Climate Change Advisory Panel’s report:

        Why did she need to get out ahead of the meeting with the Prime Minister and Premiers? Because her new strategy, though ambitious in its design and breadth, also recognizes the reality that carbon policies cannot be as stringent in Alberta as they can be elsewhere in the country without imperiling Alberta’s energy economy from which all Canadians are beneficiaries.

        Read More

        Not horsing around

        By National November 23 2015 23 November 2015

          Katya Bogdanov guesses at why an apparently straightforward case (R v Riesberry) involving a horse trainer, charged with fraud, for having doped a racehorse on race day, made it all the way to the Supreme Court of Canada. Having been acquitted by the trial judge, the accused appealed the Ontario Court of Appeal’s conclusion that there had been an error in law, noting that injecting performance-enhancing drugs was a clear breach of regulations governing horseracing:

          On my second or third reading of the ONCA decision, I noticed that potentially, there is indeed a more significant general ratio. All you need to do is take a broader bird’s eye view. Read the following fragment broadly: “bettors were entitled to assume compliance with the regulatory scheme.” Now substitute any other group of people for “bettors” and you have a powerful statement that can apply in a whole host of situations. For example, “patients are entitled to assume doctors’ compliance with the regulatory scheme that governs doctors,” or “food buyers are entitled to assume farmers’ compliance with the regulatory scheme that governs food safety.”

          Broadly read, Riesberry thus has the potential to reduce the burden on the Crown in proving deprivation or risk thereof in all fraud cases. Where the fraudulent act breaches a statutory scheme, proving the fraudulent breach itself would be enough to establish deprivation or risk thereof (assuming there is no issue of remoteness). There would be no need to show that the fraudulent act or representation was the reason for the deprivation. 

          Update: As Peter Sankoff helpfully points out, the appeal was as of right.

          Photo licensed under Creative Commons by Jeff Kubina


          Read More

          Canada underachieving in cybersecurity

          By National November 23 2015 23 November 2015

            Tenable Network Security, a US-based cybersecurity firm, has released its 2016 Global Cybersecurity Assurance Report Card. Having surveyed over 500 security practitioners worldwide, it has assigned grades by country and industry, giving an overall grade of 76 per cent – or in its own words “an unremarkable C.” Canada finds itself among the underachievers with an overall score of 76 per cent, behind the US, which received 80 per cent (or a B-). Mercifully perhaps, the report doesn’t look at the legal services industry specifically.  But here’s an indication of where some of our strengths and weaknesses lie:

            Canadian respondents led the Security Assurance pack in having the highest confidence for mitigating risks fueled by executive- and board-level commitment. However, Canadian respondents are third overall in confidence for assessing network security risks.


            1  Detecting cyber threats emanating from within (A-)

            2  Conveying risks to executives and board members (B+)

            3  Detecting and assessing transient mobile devices (B)


            1  Assessing cloud infrastructure (IaaS, PaaS) for risks (F)

            2  Assessing cloud applications (SaaS) for risks (D+)

            3  Assessing assets at the perimeter / DMZ for risks (D+)

            Photo licensed under Creative Commons by perspec_photo88

            Read More

            Legal Futures round-up – November 23, 2015

            By Emily Alderson November 23 2015 23 November 2015

              Inspired by the CBA Legal Futures Initiative, which released its comprehensive report, Futures: Transforming the Delivery of Legal Services in Canada in August 2014, here’s our biweekly round-up of noteworthy developments, opinions and news in the legal futures space as a means of furthering discussion about our changing legal marketplace.

              Malcolm Mercer defended an LSUC working group report, which announced the organization would no longer consider majority non-lawyer ownership as a viable option for the Ontario legal profession. Mercer, who is chair of the Working Group on ABS, says the interim report was a consensus decision and reflects principles over politics. The report faced harsh criticism, including accusations of protectionism, from ABS supporters.

              Young British lawyers are concerned about proposed reforms to the qualification process. The Solicitors Regulatory Authority is currently consulting on major reforms, including their preferred option to pair down the solicitor qualification process to one centralized “super-exam.” Candidates could sit the exam without any mandatory classroom education or work experience. In a letter, the chair of the Law Society’s Junior Lawyers Division says relying solely on a centralized exam could damage the reputation of the profession, endanger consumers, and solidified inequalities in accessing the profession. 

              Did you know that November 6th was “Love Your Lawyer Day”?

              Read More

              The politics of laws against encryption

              By National November 19 2015 19 November 2015


                The Paris attacks, and subsequent reporting that the terrorists used encryption to communicate, have revived the debate about laws aimed at banning – or at the very least – weakening encryption. Nicole Perlroth and David Sanger report for the NYT:

                The F.B.I. director and the Manhattan district attorney on Wednesday sought to reopen the argument that law enforcement and intelligence officials need to have access to encrypted information on smartphones with court approval.

                The question seemed settled last month after President Obama decided not to push legislation requiring American technology companies — notably Apple, Google and Facebook— to roll back smartphone encryption schemes that make it almost impossible to read a target’s communications, even if investigators have a court order. But the terrorist attacks in Paris may have changed the politics on both encryption and a range of surveillance issues, with critics renewing their charge that the Obama administration is not using all tools available to stop terrorism.

                Dan Froomkin disputes the notion that the Paris attackers used encrypted communication services:

                Read More

                Evaluating our refugee screening process

                By National November 19 2015 19 November 2015

                  Marcus Gee writes that concerns about the new government’s plan to take in 25,000 Syrian refugees are exaggerated:

                  Instead of having to deal with throngs of refugees pouring across our borders, Canadian officials will reach out to the places where refugees have temporarily settled, such as Lebanon, Turkey and Jordan. That makes it easier for authorities to examine documentation and conduct medical, criminal and security checks. United Nations refugee officials already perform those sorts of checks in advance, in effect pre-screening refugees and determining which are most suited to resettlement in places like Canada even before Canadian authorities conduct their own due diligence. Many refugees belong to families who have been in camps or other makeshift accommodation for months or years.

                  Laura Best brings some facts to the table, reminding us that Canadian visa officials abroad follow a rigorous process to screen refugees before they come to Canada:

                  Refugees who may be eligible for resettlement are first identified by the UN High Commissioner for Refugees (UNHCR), primarily on the basis of their vulnerability. International refugee law is clear that those responsible for serious criminal and terrorist acts will not benefit from refugee protection. Only one to two per cent of individuals registered with the UNHCR get referred into the potential resettlement pool. Anyone with a hint of criminal or terrorism connections is simply not placed into the pool for further assessment.

                  Next, a UNHCR officer conducts a file analysis. Officers in the Beirut UNHCR office are exceptionally knowledgeable about the events in Syria, the various factions and the timeline of the conflict. This allows for a robust credibility assessment of the facts alleged by the individual. At this point, anyone who the officer identifies as having security or criminal concerns would again be filtered out.

                  Read More

                  France's lawmakers react to the Paris attacks

                  By National November 17 2015 17 November 2015

                    On Friday France declared a nationwide state of emergency – the first time it has done so since 1961, under Charles de Gaulle, during the Algerian war of independence. Libby Nelson gives a primer:

                    The law gives local governments the right to impose a curfew, though most have not. Public gatherings are banned in Paris until November 19, so that security forces won't be distracted from their main duties, according to Le Monde.

                    Border controls — which don't usually exist within the Schengen zone of the European Union — will be in effect for a month, including when 195 countries arrive in Paris for the climate talks that begin November 30.

                    The state of emergency also gives local police the power to search houses without a warrant. They can close theaters and gathering places and forbid protests. One provision allows for the state, if it issues an additional decree, to "control" the press — though it's not clear that this provision has ever been used, other than to seize Algerian newspapers in 1955, or precisely what it allows for.

                    This week, it’s expected that France’s National Assembly, at the request of President Françsois Hollande, will extend the measure for three months. Hollande is also making waves about introducing an amendment to France’s Constitution, which would require support from 3/5th of France’s Parliament (consisting of the Senate and the National Assembly).  The Socialist president wants changes to allow the government to expel foreigners deemed a threat and strip dual-nationals convicted of terrorist activities of their French citizenship and give the state even more surveillance powers than it has now. Interior Minister Bernard Cazeneuve has also talked about looking into measures to shut down radical mosques.


                    Read More

                    The TPP: Friend or foe of the environment?

                    By National November 12 2015 12 November 2015

                      The Trans-Pacific Partnership (TPP) deal has raised a number of concerns about environmental protection. Nobel Prize-winning economist Joseph Stiglitz recently warned about its impact on our ability to regulate carbon emissions.

                      But under these provisions, corporations can sue the government, including the American government, by the way, so it’s all the governments in the TPP can be sued for the loss of profits as a result of the regulations that restrict their ability to emit carbon emissions that lead to global warming. If this provision had been in place when we had discovered that asbestos was bad for your health—you know, under the current provisions, asbestos manufacturers have to pay for the damage that they’re doing. They pay billions and billions of dollars. If the TPP had been in place, we would have to pay the asbestos manufacturers for not killing us. It’s outrageous.

                      Nikos Lavranos, expert in European and international public law, disagrees:

                      Stiglitz echoes the often-heard but so far unproven “regulatory chill”-argument that has been touted loudly by anti-ISDS groups. The argument being that States would avoid adopt measures for the protection of the environment, health or other public goods because of possible investment arbitration claims by affected foreign investors. However, so far no evidence has been shown, which proves that a State has decided not to adopt a measure because of the fear of a claim for damages. On the contrary, a recent example shows that the “regulatory chill”-argument is only of theoretical nature and unconvincing.

                      Lavranos further backs up his claim by citing Annex 9-B, which in theory protects the sovereign rights of States to take “non-discriminatory regulatory actions […] that are designed and applied to protect legitimate public welfare objectives, such as public health, safety and the environment, do not constitute indirect expropriations, except in rare circumstances.”  He then clarifies how ISDS could be an effective tool to prevent environmental damages:


                      Read More

                      Harvard’s “Free the Law” initiative

                      By National November 11 2015 11 November 2015

                        Harvard Law School has announced its “Free the Law” project, an ambitious initiative to digitize all the U.S. case law of its collection. This means that over 40 000 books of court decisions will be available online for free on the Ravel Law research platform.

                        Joshua Pluta, at the Texas Tech University School of Law, isn’t certain whether it’s a game-changer for access to legal information, but finds it promising:

                        Google Scholar already has a free database of modern case law (since 1960 for most courts, and going back as far as 1791 for some) that anyone with an internet connection can search as easily as using Google, so from that respect, this really only fills the historical gap. Moreover, those older cases, especially those prior to the Great Depression, are more useful to academics than to practitioners or citizens in general, as they become attenuated from the modern day.

                        Read More

                        Truth, reconciliation, and keeping watch

                        By Rebecca Bromwich November 10 2015 10 November 2015

                          Go Set A WatchmanHarper Lee’s first draft of the literary classic To Kill a Mockingbird was released this year to much controversy. Meanwhile, in Canada, the Final Report of the Truth and Reconciliation Commission, was released. The report and the book bear important similarities, and not just because both are stories based on childhood memories about racism and violence.  Canadian lawyers have much to learn from considering the book and the Report together.

                          Both the Report and the Lee’s story involve law and lawyers. They contain not the stories we want to hear and read, but they are both stories we need to hear. To say that one of these texts is fiction and the other is not is to misunderstand Harper Lee’s writing, which was highly biographical. These are stories about racism, prejudice, murder and the social embedding of law, stories that resonate in much the same ways about how those we love, our community leaders, like Atticus Finch, modeled after Lee’s lawyer father, and vaunted social institutions, including churches and legal regimes, have been deeply flawed.

                          Through editorial guidance, Harper Lee transformed Go Set A Watchman into To Kill A Mockingbird.   Both narratives are categorized as fiction but are profoundly autobiographical (as attested to by Truman Capote, childhood friend of Lee’s and himself a character in the story). The books narrate Lee’s life growing up in a small Alabama town as a daughter of Amasa Finch Lee, a widowed lawyer. Yes, through editing, Go Set A Watchman did become a better story, as stories go, it is more terse and less self-indulgent, with tighter prose. One thing all writers can learn from reading Watchman is to thank our editors.

                          Read More