courts, law, lawyers, politics

Pulling on the Golden Thread

One of my favourite fictional characters, Horace Rumpole of the Bailey, was famous for beginning his addresses to the jury with the admonition that “The presumption of innocence is the Golden Thread that binds British justice–”

In truth that presumption is indeed a cornerstone of our criminal justice system. That Golden Thread is spun into a protective cloak draped over every accused, lest any innocent citizen be wrongly convicted. But ought that same cloak be available to those being tried in that other court- the court of public opinion? Continue reading “Pulling on the Golden Thread”

law, lawyers, wills & estates

Weird Wills

At Darnell & Co we do a lot of estate planning and wills drafting  for clients, so inevitably we  come across testamentary requests that are just a little off the wall. Alas, as juicy as some of them are, professional ethics prevent us from talking about them.

Once probated however, wills become  public documents, so we are allowed to snicker at some of the bizarre provisions that find their way into the last wills of the rich and famous.

Charles Dickens, for example, was a man after my own heart  (and not just because of  my favourite line  in A Christmas Carol  “Are there no prisons? are there no work houses ?”) Like me, Dickens abhorred the attire which most funeral goers affect, so his will stipulated  the at “Those attending my funeral  wear no scarf, cloak,  black bow, long hat band or other such revolting absurdity”

And then there was famous escape artist Harry Houdini, who apparently thought he had a shot at escaping  death itself. His will required his wife to conduct a seance each year on the anniversary of his death, so that he could communicate, in code, from the other side to let her know that his greatest escape had worked. She gave up after ten years , but apparently the tradition endures to this day.

Lawyers are amongst the worst offenders when it comes to weird wills. Take T.M. Zink, for  example. An Iowa lawyer who died in 1930- he had a wee problem with women, leaving nothing to his wife, only $5 to his daughter, and the rest of his estate to build a “Woman-less library” not only would no women be allowed, but only  books by male authors would be displayed! (As a lawyer he should have known the will would be challenged -it was, and the library was never built)

Canadian lawyer Charles Millar created a “baby derby’ when the details of his will became public. He gave his entire fortune to the Canadian woman  giving birth to the most babies in the 10 years following his death  (the derby ended in a four way tie between a quartet of  women who each produced 9 offspring)

Lastly, we have American super -patriot Solomon Sanborn, who requested, in 1871,  that his skin be made into two drums, one inscribed with  Pope’s “Univesal Prayer”, and the other with the  Declaration of independence, and further stipulated that the  drums should be used each June 17th to beat out the tune of “Yankee Doodle ” on Bunker Hill!

I must say, the provision I made in my very first will, that I be given a viking funeral using the leaky sailboat I briefly owned as a law student, pales by comparison!

 

 

law, lawyers, wills & estates

Estate planning disasters of the rich and famous

The news following Aretha Franklin’s recent passing that she had left a very substantial estate with no will, and without making adequate provision for a special-needs child, left me shaking my head. I guess I always thought that behind any celebrity was a team of professionals; agents, managers, accountants and lawyers, making sure their affairs were in order. It appears not.

Ever curious, I decided to poke around a bit see if I can uncover any other estate planning disasters of the rich and famous and I didn’t have to look very far.

Pablo Picasso, one of those famous artists of all time died a very wealthy man with a huge inventory of artwork stuffed in his château, and remarkably without a will. He reportedly steadfastly refused to ever make one.

Picasso had a famously convoluted love life, with two wives, many mistresses and number of children born both in and out of wedlock. his refusal to make a will left his estate in an absolute mess which took some seven years and the expensive assistance of a number of lawyers to sort out. In the end result, the clear winner was the French government which walked away with the lion’s share of the estate in death duties.

Indeed, for a time it appeared that only his eldest son would inherit, and it was only due to a posthumous modernization of  French intestate succession law that his other children eventually received anything.

Quelle mess!  It can’t have been what the great man intended .

 

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courts, divorce, family law, law, lawyers, negotiation

Know when to hold em, know when to fold em- why lawyers hair turns grey

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”

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!

computers, law, lawyers

Why lawyers hair turns grey- part eight of a series

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”

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.