I once employed a junior lawyer who had come the law late in life after a first career in academia. She viewed the practice of law through a somewhat different lens, as a result of her previous rich and varied life experience. Some of her observations were very shrewd. Continue reading “Know when to hold em, know when to fold em- why lawyers hair turns grey”
Everybody loves a time capsule. Digging one up gives one a chance to reminisce about the good old days, chuckle over the quaint prices of bygone years, shake one’s head at the fashions of the day and ponder how the headlines of the time actually played out in subsequent years.
The last time I participated in building a time capsule I was in high school, and the occasion was Canada’s Centennial, but this weekend I think I’l give it another try. I’ll dig a hole in the back garden and plant a container with a copy of this week’s Vancouver Sun-the one with the headlines announcing David Eby’s quest to sue Big Pharma for the government’s costs in dealing with the opioid epidemic, together with a note from me to my future self.
Then, 10 years from now, I’ll dig it up, retrieve the note and re-blog its contents to the world. The note will say “David! I told you so- I warned you that nothing good would come of suing Big Pharma. I told you it was a money pit and the only beneficiaries of your decision would be Big Law- the handful of downtown mega firms lucky enough to get a seat on the gravy train.”
The Attorney General, in making the announcement, claims that his department has learned many lessons from the “tobacco lawsuit”- a similar venture wherein various levels of government are suing the tobacco industry for healthcare costs related to smoking.
Frankly I find that hard to believe. The tobacco litigation has been grinding on for at least 10 years now, at a monstrous cost, and is nowhere near even going to trial. whole departments of well-paid lawyers have been spending literally years pawing through millions of documents. There are lawyers in the city, now starting to sprout gray hairs, who have worked on that single case for their entire career. The case has been a cash cow for the law firms involved, and many millions of tax dollars have been flushed down the drain
If I understand the premise of the lawsuit correctly, it is one of damages for misrepresentation- Big Pharma allegedly lied to us about opioids, telling us they were safe and non-addictive. That may be so, and I’m sure that some of the addicts the system is presently dealing with became so in all innocence, relying on the advice of doctors and taking medication that was prescribed to them. But I don’t buy that that subset of Addicts is at the heart of our present overdose crisis.
Surely the skyrocketing rates of drug overdose are caused, nor by misled consumers taking their prescription medication, but by the widespread introduction of illicit and adulterated drugs. People are dying not because Big Pharma lied to them, but because somebody laced their drugs with elephant tranquilizers. The only drugs that Big Pharma pedal are those which the government has approved, and then only by prescription through a licensed pharmacy. The overdoses however are coming from ingesting drugs being cooked up in basement labs, and being cut with substances such as fentanyl.
More and more our ponderous civil trial system is demonstrating itself to be an expensive and inefficient mechanism for governments to recoup damages in situations such as the present overdose crisis. The causes of such crises are simply too complex to be neatly pigeonholed into conventional theories of legal liability.
So, I have the hole dug and the capsule assembled ready for a burial this weekend, but I just checked Facebook, and I think I’d better add a copy of my resume to the contents, since my senior partner has just posted in support of the Big Pharma litigation ! She’s obviously a proponent of make work projects for lawyers!
As a young lawyer the only technology that graced my office was an IBM Selectric electric typewriter, a dicta-phone, and a photocopier. Sigh- those were indeed the “good old days”! Continue reading “Why lawyers hair turns grey- part eight of a series”
The practice of law is a tightly controlled monopoly. Cynics will suggest that this is merely to protect the affluence of fat cat lawyers, by preserving lucrative commercial activities exclusively for them, while lawyers themselves argue that it is in the public interest to only permit highly trained, licenced, and insured individuals to undertake these tasks.
The “practice of law” is an extensively defined term in the Legal Professions Act, and includes the obvious, such as giving legal advice or appearing in court as counsel or advocate for a fee, but also includes “drawing, revising or settling an instrument relating to real or personal estate that is intended, permitted or required to be registered, recorded or filed in a registry or other public office.”
By this definition, charging someone a fee to draft and file incorporation documents constitutes the practice of law. Only lawyers can legally incorporate companies for a fee, and this fact has been a source of much tension within the business community for years. On its face at least, the incorporation process has always been dead simple, and, since the Registrar of Companies went online a few years back, pretty well anyone with access to a computer and a VISA card can perform the rudiments of an incorporation within minutes.
In the result, recent years have seen a large uptick in “do-it- yourself” incorporations (its always legal for you to do it yourself, just as you have a right to represent yourself in court) Indeed the profit centre in the corporate area of my own practice has shifted away from initial incorporations to the repair of badly done DYI companies, since they pretty much all rneed repair at some point..
The truth of the matter is that the online “fill in the blanks” incorporation process misses a number of crucial steps, such as the issuance of actual share certificates, the adoption of articles and the creation of a minute book with a proper record of shareholders. Most DYI incorporations are seriously flawed. That’s a risk amateurs are free to take, but there are good reasons to restrict those who charge a fee for incorporating to the ranks of the legal profession. Its not as simple as it looks.
The guardians of the legal monopoly in BC is the Law Society of BC, who, for many years have relentlessly tracked down and prosecuted the accountants, bookkeepers, business consultants and others who have had the temerity to advertise incorporation services for a fee (and there are a lot of them!) There is indeed an entire section of the Law Society dedicated to ferreting out unauthorized practice, employing several private detectives to do their snooping. Their typical catch seems to be a small home-based bookkeeper who had no idea they were treading onto hallowed ground.
As lawyers we are encouraged, and in some cases required, to bring transgressions of the Legal Professions Act to the attention of the Society, so when I recently stumbled upon a slick Facebook ad from ownr.co, boldly offering online incorporation for a fee, I was quick to email the unauthorized practice tip line at the Law Society.
Their response was a disappointment. It read as follows
“Thank you for your e-mail. Incorporating companies for or in the expectation of a fee is the practice of law. That said, the Law Society will only enforce the provisions of the Legal Profession Act if it is in the public interest to do so. The Law Society has determined that it will not pursue template or ‘fill in the blank’ incorporation services unless there is an indication that legal advice is offered or if there is evidence of harm to the public.”
So what then is the difference between the little ‘mom & Pop” incorporation shops that the Law Society prosecutes so zealously, and ownr.co? Ah, well, it seems that ownr is run by none other that the Royal Bank ! Our Law Society, it seems, is only brave when it is going after the little guys, but wimps out when it comes to calling out a major bank for the unauthorized practice of law.
We are inaugurating with this post, an occasional series dedicated to honouring those members of the legal profession deserving of a special award for colossal stupidity in the commission of a career ending folly. The award is, of course, an offshoot of the better known Darwin Awards, which celebrate the perpetual cleansing of the human gene pool by the magnificently stupid, and are named after Sir Charles Darwin, who famously observed that smart species survive, and dumb ones don’t.
Today’s recipient is James Cooper Morton, aged 58, a senior and well known member of the Ontario Bar; former head of the Ontario Bar Association, an adjunct professor of law, and a sometimes Liberal candidate for parliament. Mr Morton. it seems became enamoured of his law clerk, to the point of proposing marriage. It happens- office romances can sometimes lead the unwary into matrimony.
There existed but a single impediment to the path of true love. Mr Morton was, unfortunately, already married. Nothing that an ugly and expensive divorce couldn’t cure- right?
Well, even lawyers begrudge paying divorce lawyers, it seems, almost as much as they hate handing over half their assets as the price of freedom, so Mr Morton took a wee short cut. He simply forged a divorce decree, complete with an official looking court stamp and fake judicial signatures. A seemingly simple and elegant solution to the otherwise messy business of divorce!
Alas, the scheme very quickly unravelled, and Mr Morton has now been charged with forgery and obstruction of Justice, and finds himself suspended by the Ontario Law Society. (and facing some actual divorce proceedings as well, no doubt!)
Lawyers wreck their careers in all sorts of ways and for all sorts of reasons, but Mr. Morton self -destructed with such panache that we simply had to award him with this blog’s first Legal Darwin Award .
Everybody loves to read a good rant on Facebook- its sorta like reality TV without the cable fees- everybody that is, except your lawyer, who would really, really prefer that you not slag your ex on Facebook, or post mean spirited tweets, or worse yet, drunk dial to leave a vicious voice message – all of which will inevitably end up appended to a court affidavit, and vastly complicate the task of convincing a court that you are a righteous, upstanding person, in who’s favour a ruling should be made.
In any court case there are actually two parallel disputes afoot. There is the formal, plodding court case itself, which meanders towards a court date and final resolution in accordance with a lengthy set of rules known only to the lawyers involved. That process is intentionally devoid of emotion. It is rules based, and evidence driven.
Then there is the visceral dispute that rages in the minds of the litigants. That’s the dispute where the rage, the betrayal, and the hurt bubble to the surface and keep you awake in the small hours of the morning. That is the dispute that craves retaliation and revenge and drives litigants, unwisely, to their keyboard to lash out at the source of their pain.
Lawyers (allegedly) are humans too, so we understand that there is another battle raging beyond the confines of the court case we are pursuing, that requires the emotional release of a client ‘getting their licks in’ and responding to the taunts of the
Apparently Buddha never actually said “to conquer oneself is a greater victory than to conquer thousands in a battle.”, but he damned well should have- and whispered it into many a clients’ ear before their drunken hands reached for that keyboard! Self discipline does indeed win lawsuits, and the lack of it in a client turns consistently turns lawyers hair grey!
I blogged a while ago to protest the Law Society’s decision to bury the legacy of our first chief justice, Sir Matthew Bailie Begbie, and more recently about the tide of political correctness that was targeting Sir John A. McDonald. Now that Victoria city council has also been swept up in the craze and toppled Sir John A.’s statue from its perch outside City Hall, I thought it time to re-visit the issue.
I confess that my knee-jerk reaction remains the same. You cannot simply erase the past, and the actions of historical figures such as Sir Matthew and Sir John A. towards First Nations people is only a small part of their overall legacy. Devoid of context, the decisions to remove their statutes seems, quite frankly, just plain silly.
Although both the Law Society and Victoria City Council have ample capacity to make silly decisions, I have to remind myself that these are serious bodies populated by intelligent and thoughtful people, so one ought to take some time to understand the context of the decisions before ridiculing them. they are of course responding to the report of the truth and reconciliation commission, which urged to Canadians to begin a reset of relations with our indigenous people, by becoming aware of the truth of the past, acknowledging the harm that has been inflicted, atoning for the causes of the harm in taking action to change our behavior.
I suppose I can understand how figures such as Sir Matthew and Sir John A. may be viewed negatively by our First Nations and how glorifying them with public statutes could be viewed as hurtful; in much the same way that blacks in the US must react to statutes of Confederate war heroes.
I can even understand the needs for some powerful symbolic gestures, like the toppling of the odd statute to force us to take a fresh look at the past in the context of the harm done to our indigenous people. And, I suppose it will take a bit of discomfort on our part in order to signal that we are indeed starting to”get it” when it comes to the historic abuse of First Nations and ready to take some meaningful steps towards improving the situation.
The Truth and Reconciliation Commission process was an extraordinary undertaking, taking some six years to hear testimony and document the sordid history of our residential school system. One cannot read the Commission’s final report without feeling thoroughly ashamed of the treatment of our First Nations by our government for almost 100 years.
The problem I think, is that few have actually read it. Certainly I came late to the party, notwithstanding that while the Commission was active I was employed by a law firm that was making millions from settling residential school claims. The reporting on the work of the Commission was, for the most part, very earnest, very respectful, and and very dull. It was left to bodies like the Law Society of BC and Victoria City Council, to actually read the full report, thoughtfully consider the 94 calls to action which resulted from the report, and contemplate what concrete action they could take towards implementing them. The process was simply too long and too somber to engage the attention of most Canadians, so little wonder that they are now reacting negatively to efforts to implement the report
I’m left with the uneasy feeling that possibly removal of the statutes was the right thing to do, but at the same time with the absolute certainty that the reasons for the removals have been badly communicated to the public. If you’re going to kick to the curb our first Chief Justice and our first Prime Minister you need to be able to explain your reasons why. It isn’t much of a symbolic gesture, if nobody understands the symbolism.
Our public institutions are going to have to get an awful lot better at explaining themselves if they are to have any hope of effectively educating their constituents about the need to take action towards implementing the Truth and Reconciliation Report’s calls to action, otherwise they will continue to be met with derision, when, without context, they topple a father of confederation.