Big Law, Big Pharma, courts, law, lawyers, Uncategorized

Of time Capsules and Big Pharma

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!

courts, law, lawyers

Law Society wimps out

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.

 

courts, Darwin award, divorce, family law, law, lawyers, weddings

The Legal Darwin Awards

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 .

 

 

courts, divorce, family law, law, lawyers

Why lawyers hair turns grey- Part six of a series

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!

courts, law, lawyers

Keeping up with the Third World

I acted for a time for national collection agency, which gave me a lot of insight into how civil cases are filed and processed in the various Canadian provinces and territories. It was a real eye-opener to discover how primitive and old-fashioned the filing procedures are in most Canadian jurisdictions. Court filings are, for the most part, paper-based, and usually have to be filed in person, by sending someone down to the courthouse to stand in line.

BC is an exception, having somewhat embraced the modern era with the ability to file court documents online, as well as permitting access  to Court Registry files via the Internet. After a few months of wrestling with antiquated systems in other provinces I came to thank my lucky stars that I practiced in such an enlightened jurisdiction, where cutting-edge technology made my job so much easier.

Any illusion I had about being in the vanguard of the march to embrace technology in the practice of law was however shattered last week, when I learned of the technology initiatives now being implemented in Nigeria.

The entire Nigerian court system is now becoming completely paperless. All communication with the court must be done via email, and court filings can only be made via the Internet. All participants in the justice system including lawyers and judges are being issued with secure “legal email” accounts, and the courts themselves are deploying Case management software to further modernize the process. The  Nigerian justice system henceforth is no longer in the paper storage business.

It is an impressive undertaking and one which leapfrog’s the Nigerian court system well ahead of British Columbia’s. We would do well not to become too complacent with the baby steps that we in BC have taken to modernize our court processes. Indeed we ought to be a bit sheepish that we are not keeping up with the Third World.

Oh, and if you do get an email from a Nigerian lawyer in the future, it just might not be a scam after all!

courts, divorce, family law, jury trials, law, lawyers, Uncategorized

Why Lawyers hair turns grey- Part 7 of a series

It was Shakespeare who first opined   “Attire oft proclaims the man”, and Mark Twain who refined it, quipping “Clothes make the man- naked people have little or no influence on society.  Never mind society- Continue reading “Why Lawyers hair turns grey- Part 7 of a series”

courts, law, lawyers, real estate

Why Lawyers hair turns grey-Part five of a series

Some bits of folk wisdom are so ingrained that it’s impossible to remember where you first heard them- stuff like “always look both ways before stepping off the curb” or “never run with scissors”. So how about you? can you remember when you were first told  “always read it before you sign it!”  was it in grade school? or possibly early high school? -certainly before you ever graduated I’m sure the words “READ BEFORE SIGNING” were seared into your adolescent brain. I would hazard a guess that if you know how to read, you have heard that warning.

So then why is it such a common occurrence for clients to request a document review from a lawyer of a document they’ve already signed? what part of  READ BEFORE SIGNING don’t they understand?

It leads me to think that there must be a widespread misconception making the rounds on the Internet, to the effect that you can always wiggle out of a bad contract, if your lawyer, after the fact, explains that you’ve been hosed. Why else would we be inundated with requests to “hey, could you take a look at this heavy-duty contract I signed last week?-Just in case is anything bad in there?”

Then again, I wonder if the misconception stems from our consumer protection laws, which do stipulate a cooling off period to allow the rescission of certain high pressure door-to-door sales contracts. Possibly our clients believe all contracts have a cooling off period- courtesy of the Nanny State? (-some free legal advice-they don’t!)

Or possibly,  we have all just been numbed into submission by the daily barrage of contracts of adhesion to which we are subjected – you want to rent the car, or book the hotel room, or access the website – then sign the contract, or click “I Agree”- no sense reading it, its not negotiable. I confess, I have been caught that way myself, with some sneaky wording in a gym membership which I hadn’t read ( although I successfully pled insanity – after all- what sane person pays good money to get sweaty?)

Whatever the root cause, there are an inordinate number of people out there blithely signing important, (and otherwise negotiable) contracts, for things like home and business purchases, or commercial leases, even separation agreements, without bothering to read  or understand them.

The unpleasant task of explaining to a client that they have been very foolish, but could have averted disaster if only they  had sought advice  before signing is just one of the things that make a lawyer hair turn grey.

HERE ENDETH THE RANT.