Since the Gazette can be used as evidence of the text in court, I'm curious as to what measures were taken, if any, to ensure the integrity of the 'official' digital publication. Are they just securing by way of Adobe's password security? Is that sufficient? Is the document produced to an archival standard (PDF-a)? It does not appear to have any digital signature, unlike some of Australia's legislative publications (see Australian Capital Territory legislation: http://www.legislation.act.gov.au/) — is that necessary for authentication?

In a digital world, is there still value in a weekly or bi-weekly Gazette publication? Why not just scan and publish in an online digest? Are Gazettes completely obsolete?

This post is timely because it seems the legal community–it's where you go when your character is deemed "good enough" after three attempts to prove it. Can I also assume that the legal community raised this individual, taught and shaped him and that his growth and "good enough character" is now the legal responsibility of the Law Society of Upper Canada. Is this community prepared to supervise and monitor him while he practices law?

There is something perverse about presupposing that a deepening sense of being a member of the legal community can arrest or transform any individual with character flaws. In my view, this is not rational thinking nor in the public interst but then again, this is the self-regulating legal community that we are speaking about.

The egg is scrambled and the chicken has been made into nuggets? What was the question?

As long as the journal impact factor (JIF) continues to be used, inappropriately, to evaluate not only journals, but the individual papers that they publish, this is probably good advice. The subscription journal of choice is likely to be one with a high JIF.

In the meantime, article-level metrics, increasingly incorporating altmetrics, are being advocated as a replacement for the inappropriate use of the JIF. See, for example: http://am.ascb.org/dora/.

Finally, PeerJ isn't the only promising new open access journal that's paying attention to affordability. So far, so is eLife, which currently has no article processing fee. Articles published in both of these journals are indexed in the widely-used bibliographic database PubMed, and are also archived in the PubMed Central repository. Both are also providing article-level metrics.

Plans by universities and research funders to pay the costs of Open Access Publishing ("Gold OA") are premature. Funds are short; 80% of journals (including virtually all the top journals) are still subscription-based, tying up the potential funds to pay for Gold OA; the asking price for Gold OA is still high; and there is concern that paying to publish may inflate acceptance rates and lower quality standards. What is needed now is for universities and funders to mandate OA self-archiving (of authors' final peer-reviewed drafts, immediately upon acceptance for publication) ("Green OA"). That will provide immediate OA; and if and when universal Green OA should go on to make subscriptions unsustainable (because users are satisfied with just the Green OA versions) that will in turn induce journals to cut costs (print edition, online edition, access-provision, archiving), downsize to just providing the service of peer review, and convert to the Gold OA cost-recovery model; meanwhile, the subscription cancellations will have released the funds to pay these residual service costs. The natural way to charge for the service of peer review then will be on a "no-fault basis," with the author's institution or funder paying for each round of refereeing, regardless of outcome (acceptance, revision/re-refereeing, or rejection). This will minimize cost while protecting against inflated acceptance rates and decline in quality standards.

Harnad, S. (2010) No-Fault Peer Review Charges: The Price of Selectivity Need Not Be Access Denied or Delayed. D-Lib Magazine 16 (7/8).

Indeed interesting stuff you've written on hacking-back. Here are some added “defence” thoughts:

1. If there were evidence making reasonable, a belief that the "hack attacker" would persist and do it again if action were not taken by immediate "hacking back," I'd argue, (in addition to the arguments that you've suggested), Criminal Code s. 27, "Use of Force to Prevent Commission of Offence." Counter-arguments that such hacking back action should be left to the police, would be answerable by the need to follow the attack back immediately, being the time when finding the attacker was most opportune–like shooting back at the spot whereat the intended victim sees the flash of the attacker's gun before the attacker is gone or shoots again. "Do before you're done to."

— see: Foley, [2000] O.J. No 5204 (S.C.J.): a belief in the need for retaliation may be mistaken but reasonable, and, "a person defending against an attack reasonably apprehended cannot be expected to weigh to a nicety the exact measure of defensive action required." (This is a "Baxter instruction" to jury or judge alone, in relation to the extent of necessary force: Baxter, [1975] O.J. No. 1053 (C.A.). And see also Scotney, [2011] O.J. No. 1444, 277 C.C.C. (3d) 186, 280 O.A.C. 262. Such cases being applicable to s. 27 even though they deal with assaults upon the person re. s. 34: Foley, supra.)

2. Necessity: As you point out, hacking would be mischief as per Cr. Code s. 430(1.1), as it would be by way of the type of mischief called, "the unauthorized use of a computer" under Cr. Code s. 342.1. Although the, "in immediate peril," "imminent risk," and, "moral involuntariness," requirements of the necessity defence (see Perka, [1984] S.C.J. No. 40, [1984] 2 S.C.R. 232; and see the "necessity defence availability" summary below) greatly restrict its use in relation to the defence of property, it has been considered in relation to property offences. Even though the defence failed in most of the following cases, it did not fail because necessity isn't available in regard to property offences, offences such as:

– mischief: Stevenson, [1986] 5 W.W.R. 737, 42 Man.R. (2d) 133 (Man. Q.B.), leave to appeal refused, [1987] 1 W.W.R. 767 (Man. C.A.), necessity defence failed because there were other alternatives available; accused burning bridge on a highway that ran through an Indian reserve; bridge in poor repair, accused claiming this was the only way they could draw attention to the need for repairs and conditions on the reserve.

- break and enter: John Doe, [2007] B.C.J. B.C.J. No. 2111, 228 C.C.C. (3d) 302 (B.C.C.A.), acquittal set aside, new trial ordered; accused testified that he had been fasting in the woods for 60 days when he entered the house to be warm and to eat; the trial judge erred by not correctly applying the modified objective test to the first two components of the defence of necessity – the existence of an imminent peril or danger and the absence of any reasonable legal alternative, had to be assessed on a modified objective standard; the trial judge erred by failing to determine whether the accused's perception of his situation, and the absence of any lawful alternatives, had an objectively reasonable foundation; the verdict would not necessarily have been the same had the trial judge properly applied the law on the defence of necessity.

- false pretences: Deveau [1993] N.B.J. No. 332 (N.B. Provl. Ct.), passing bad cheques because of economic necessity; defence failed because accused had other legal options open to her.

- fraud: Lalonde, [1995] O.J. No. 160, 22 O.R. (3d) 275 (Ont. Ct., Gen. Div.), accused suffering from battered wife syndrome, charged with defrauding Ministry of Community and Social Services by failing to report that she was living with a man while collecting family benefits; accused fearing the man and believing that she had no other choice; she was eligible for general welfare benefits in any event; agents of the Ministry aware of the circumstances but overlooking them; accused acquitted. (Lavallee, [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36, on "battered woman defence" considered.)

Stephen, [2008] N.S.J. No. 43 (N.S.S.C.), battered wife syndrome defence failed re possession and laundering proceeds of crime for her husband, a drug trafficker, because the court found beyond a reasonable doubt that she was in the relationship with her husband out of choice.

And, there are a large number of, "compelled to take my drugs" cases, too numerous to summarize by email.

I did find the following summary as to the availability and scope of the necessity defence:

1. The defence of necessity is an excuse, operative by virtue of s.8 (3) of the Criminal Code.

2. It is available to excuse conduct which is normatively involuntary.

3. To be involuntary, there must be circumstances of imminent and urgent peril where the action taken is unavoidable (measured according to a modified objective standard).

4. The action must similarly be unavoidable in that there is no reasonable opportunity for an alternative course of action that does not involve a breach of the law (measured according to a modified objective standard).

5. The defence applies only where the action meets the proportionality test; the harm avoided must be more serious than the harm caused by the act in question (measured according to an objective standard).

6. There must be an “air of reality” to all three criteria set out in points 3 to 5 above.

7. Negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity although actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle.

8. Mere dissatisfaction with the current state of the law does not provide a basis for the defence of necessity.

9. The presence of law enforcement agencies who are available to take matters under control if necessary will deprive the accused of the defence of necessity.

———

John, I look forward to your next piece on this subject.

— Ken (Ken Chasse, Toronto).

I don't think that women lack self confidence. I think that women have more humility and a greater awareness of the contribution of others to their success. We are uncomfortable taking all the credit and will respond to a recitation of our accomplishments with a "I don't deserve all that!" because we know that our best work is often a product of collaboration. Or we simply do not want to be singled out because it upsets the balance we may have achieved in our relationship with others.

Femininity is about being more concerned with making sure that everyone in our family/community/world is recognized, valued and nurtured. It is not about standing out on top of everyone else. Women lead by bringing people together by consensus, by cultivating strong, nurturing relationships and community. Men are socialized and/or pre-programmed by nature to seek an alpha-style domination over others. They are encouraged to climb over others and take credit to move up in the pecking order. This behavior is called "confidence," but really, it is just pragmatic self-interest.

Why should women have to forfeit any of our pro-social behaviors like humility and strong sense of community? Why don't we insist that men be more like us? In fact, doesn't that need to come first? To have society truly appreciate the value and strength of femininity and encourage all people, regardless of gender, to incorporate those values into our approach in the work environment?

Sue– I know that some provincial governments have looked at forgiving a portion of student loan debt for lawyers who end up practicing in public interest areas. But I haven't heard of its implementation anywhere. As noble as the goal may be, I don't know if law schools would be willing to defer or write off tuition revenue in order to improve access. They typically complain of not having enough revenue to balance their books as it stands. Sad but true.

Re your second point regarding the same tuition being charged to all law students no matter their career intentions– this is obviously the case at all law schools. But law students may be choosing between law schools based on tuition costs and their particular career aspirations. If someone wished to be a solo practitioner in PEI, perhaps they would choose to pay $9,000 at UVic (trans-Canada flight costs notwithstanding) rather than $29,000 at U of T. And vice-versa for someone intent on working at a Bay Street firm. This, of course, only entrenches socioeconomic disparity as the elite schools become increasingly elite and further removed from concern for "street-level" legal practice. Maybe paralegal schools become more popular as Anne suggests.

This is a bit off point, but I've never understood why full-time lawyers all pay the same Law Society-brokered insurance premiums when some legal practices are fraught with much higher value risks (and are more lucrative) than others. Perhaps something can be done there.

Jamie– TRU charges $17,000 because the market permits it, I guess. If nothing else, it provides a good example of why tuition regulation is so important.

Pete Binfield (Publisher, PeerJ)

(1) Some sort of official communications or security infrastructure. A decade or more ago, the Federation of Canadian Law Societies explored the establishment of a nation PKI CA, or something along those lines. Seems to have not materialized.

(2) Some other third-party service in which there is a sound basis for reliance, such as Canada Post's epost service (possibly; I don't know much about it).

I realize this would be difficult to manage, but it would make access to the law better, and those who make more money pay more tuition, just at a later date. Why should it be that those who desire to work on Bay Street pay the same price for tuition as those who would rather work in a solo practice in small town Prince Edward Island? The Bay Street lawyer will have lots of cash later, whereas the solo practitioner may never make more than $60,000.00. Both are lawyers, but the solo practitioner can actually live out his/her dream and not have to work at a big corporate firm just to pay back his/her student loans.

Just a thought.

Email to a blackberry, for example, can be every bit as good as postal mail. To an as-cheap-as-possible phone or pc, you could lose as many as one in a thousand messages.

I consider non-reply to email or fax as predominantly a human problem, and check if I don't hear back. This catches the human blunders, and the occasional technical one.

Therefor:
- email is less reliable than postal mail, approximately as reliable as fax, but fare more reliable than the mail recipient
- depending on humans is a risk to the person doing the depending (:-))
- I don't think it needs to be distinguished from fax or surface mail, but it is distinguishable from registered mail.

–dave
[Full disclosure:
1. I implemented SMTP on Honeywell GCOS
2. I also analyzed it in a safety-critical software course]

As with any ODR program, there are questions about its business model: who pays? Is it an add-on to the usual Justice/Courts budget, or can the parties pay some or all? Can resources be taken from the existing courts budget because this does the same job better?

B.C. will explore answers to those questions with its Civil Resolution Tribunal as well, once it's up and running – though not for family cases, rather small claims and some condominium/strata titles disputes.

Speaking of Mr Susskind, however – is the disruption that dispute resolution is going online, or that it is being done by mediation etc? The 'ADR' disruption has been predicted for over 20 years. Is it happening? Or is it too an add-on to the usual business model? Technology is a disruptor, but is ODR?

In practice, an attacker usually has a "command and control" computer which controls a cloud of "bots", which are other people's computers subverted by viruses. These "bots" carry out the attacks, without the knowledge or approval of their owners.

This raises the possibility of looking at the virus-infected machines as a kind of public-health problem. What actions can a private person, a police officer or a medical professional take against someone who has a physical virus? What are their computer analogs? And what are the laws that apply to them?

In some cases, competing viruses and hack-back practitioners run antiviruses on the infected machines, or apply the Microsoft patches that will stop the infection. Can one make a public-health case for requiring someone to run a particular antivirus?

–dave

We're left with qualitative data, and there are countless anecdotes of people who went to law school for one reason but practice in an entirely different area due to economic considerations.

I would like to see, for example, entrance interviews for students going to law school. Although it exists as an input issue, students across Canada dream of attending McGill just for its low domestic tuition.

What we can potentially use is the considerable amount of information available about Gen X and Y and their respective debt and cost of living issues. We know that they face very different challenges than previous generations, and have far more limited opportunities and career stability. In this larger data set beyond just lawyers there are some studies suggesting that lower tuition can impact enrollment patterns, and there are some studies indicating that debt may not affect career choices. But Rothstein and Rouse were able to find a link between higher debt and the choice of a higher paying job over a public interest one.

Where we all agree is that the Law Society, including the benchers, are required to regulate in the public interest and not in the interests of lawyers or paralegals.

I agree with Mitch and Alice that the self-interest of lawyers and paralegals and the public interest may not always be aligned. It is right that this be kept in mind. Constructively sceptical observation is appropriate. Where I think Mitch goes wrong is to baldy assert a breach of professional values and to baldly condemn this approach to regulation. He blogs in capital letters.

Sometimes, clients wants a lawyer to act despite a conflicting duty or interest. The client see advantage in that lawyer acting. Perhaps, the lawyer is trusted by the client. Perhaps the lawyer has particular skills. Perhaps the client has invested time and effort bringing the lawyer up to speed about the client's affairs. Clients are entitled to examine their alternatives and make a practical conclusion as to the risk-reward. Mitch's bald analysis fails to recognize that this is part of our professional ethics. He seems to say that lawyers can never act where they have a conflicting interest. He is wrong.

Where there is a conflicting interest, the question is whether there is a better alternative for the client or, by analogy, for the public interest. Mitch obviously believes that there is a better alternative. But he never really elaborates it. He takes the easy route of just being critical.

I believe that our current approach, despite its inherent risks, is the best available alternative. Lawyers and paralegals elected to act in the public interest treat their responsibilities seriously in my experience. Our experience and pride in our professions are real benefits in regulation. I doubt that the state, or state appointed non-lawyers/paralegals would do a better job. And I believe that state control of lawyers is better limited, if not avoided, in the public interest. I also think that professionalism in day-to-day life is encouraged by self-regulation.

Alice fairly asks what is the evidence that regulation by lawyer, paralegal and lay benchers is working. Happily, there is good evidence. When paralegal regulation was established, the Ontario government provided for a five year review by an assessor who was neither a lawyer nor a paralegal. The Morris Report concluded that paralegal regulation was a success. This was the opinion of paralegals who were surveyed. This was the unanimous opinion of the Paralegal Standing Committee (a minority of whom are lawyers – I am one of them). The Law Society has already acted on a number of the recommendations of the Morris Report.

But there was one area of particular concern in the Morris Report namely paralegal education and evaluation. Mr. Morris concluded that improvement was required. While increased scope of practice might be appropriate, public protection required better trained paralegals.

The withdrawn motion was flawed because it didn't accurately reflect the conclusions of the Morris Report nor the work already undertaken by the Law Society in response to the Morris Report. I'm glad it was withdrawn.

But the motion was problematic on another ground. An AGM, with members voting in their own interests based on limited information, is not the best place to resolve these issues. Inevitably, those with the strongest views will attend to state their views and represent their interests.

There is wisdom in having lawyers and paralegals work together in the Law Society in the public interest. Working together enhances mutual understanding and respect. Different perspectives become better understood. This approach to regulation mirrors our approach to governance in our complicated country with differing regional perspectives and interests.
In assessing Mitch's various salvos, it is helpful to try to understand his perspective. Mitch appears to see the issue simply. Lifting constraints on competition will solve most problems. Nothing much else matters. Mitch views restraint and deliberation cynically. When he doesn't have all the facts, he assumes the worst.

But the public interest is not so easily advanced and protected. The public interest requires properly educated and trained lawyers and paralegals. Scope of practice is properly tied to appropriate skill and judgment. Our legal system and the administration of justice must be protected as must clients.

Mitch seems to want to wear, as a badge of honour, that he is prepared to offend. Fair enough when his speculations are accurate. But he is simply wrong when he alleges that lawyer protectionism was brought to bear on the movers of the paralegal motion.

In due course I concluded that the entire system would suffer severely from the results of a spectrum of problems, most notably a profoundly dysfunctional culture. But until much more recently I did not foresee where we are today. Now it is clear. If the system hasn't already gone over that proverbial precipice, it is very close.

What about the rule of law? When I first came across that term it mystified me. I thought "rule" and "law" were synonyms, so I went looking for the law of laws. Then I realized that the term is contrasted with "rule of kings", that is "rule" means "sovereignty".

I'll bet that most Canadians today would still not know what the term means. I've read a great deal of rhetoric on it, so when I spotted Tom Bingham's book at Chapters and perused it I decided it wasn't worth buying. But in due course I changed my mind.

I still can't entirely agree with the reviewers' praise of the book. Bingham describes the ideal as he sees it in the British context. I don't know what the reality is in the U.K. but in Canada we are nowhere near that ideal, and I'm sure many members of the legal establishment understand why.

One of my concerns is that if what I've learned about the conduct of the legal establishment becomes widely understood then some people are going to use that conduct as an excuse for serving their own interests without regard to the rule of law as long as they think they too can get away with it.

Maybe that's what we are already seeing. Personally, I think the rule of law is the essential prerequisite for a healthy society. And so we have to find a way to commit to getting there. Just because the public can't decipher jurisprudence and the rhetoric of the legal establishment doesn't mean they won't comprehend that they are being deceived.

I also commend her for taking 5 weeks of holidays in the course of the year described – that is quite a feat.

But, I am troubled by this piece for a number of reasons, not the least of which being that I just cannot work out the math. Billing 2400 hours in 47 weeks is possible, to be sure, but challenging and allows little time for other necessary professional pursuits such as continuing education and office administration, not to mention participation in professional associations and volunteering.

I am even more troubled by the focus on billable hours in both the personal story related and the advice to associates (and firms). While the billable hour may still rule in the author's firm, it is certainly a measure that tells us little about either quality of work or productivity and, increasingly, is being called into question by clients.

Finally, I find it concerning that this version of a balanced life is presented on behalf of the Lawyers Professional Assistance Conference. I'll concede that each of us has a different view of balance, and that what looks like balance in one's 20s or 30s may no longer seem so in later years. But LPAC itself recommends, in its Model Work Guidelines for Young Lawyers (http://www.lpac.ca/main/Courses_01/young_01.aspx) no more than 50 hours of work per week as a maximum.

I am a attorney turned children's book author and write in response to your post entited: "Wake Up Speak Up Shake Up". I believe that my books and related educational efforts are an intregal component to Justice Bauman's call to action. I hope you will consider doing a story, comment, or review on my books/series.

"A Story of Lawyers™" was written to educate children of all ages, but specifically my nieces and nephews, about the work lawyers do, to honor those who admirably serve our profession, and to help improve public perceptions. At the encouragement of colleagues and friends, the book was published and expanded it into an educational series. The second book, "A Story of Lawyers™ with Views from the Bench", explains the role of the judiciary in our system of justice. It incorporates most of the benchmark materials found in Sandra Day O’Connor’s icivics curriculum and is being considered for state and national education efforts. A third book, "A Story of Lawyers™ Raising the Bar", is set for release before the end of the year. It explains the function and purpose of bar associations, the many ways lawyers volunteer in their communities, and programs like Legal Aid that are available throughout the country.

It is a much easier task to shape a child's perception than it is to change that of an adult. The legal profession is indeed changing. The future of the profession will be determined by the young lawyers of today. We can help them in their efforts by working through children today.

If you would like additional information, please feel free to contact me. My phone number and email address are provided below. I thank you for your kind attention and look forward to your response.

Jacqueline J. Buyze
Attorney / Mediator / Author
Phone: 239-404-6926
http://www.BuyzeMediation.com / http://www.astoryoflawyers.com

Please like “A Story of Lawyers” on Facebook

This may draw many comments from paralegals suggesting that lawyers and paralegals are equally capable however this is delusional thinking and clearly not supported by fact. If a paralegal could make it to law school, that would be the obvious way to get an expanded scope of practise that they are fighting for currently. Clearly they cannot and that reason would be an academic one.

This is not an access to justice issue…this is all about money.

Paralegals want to do Real Estate Transactions claiming it is an access to justice issue. Currently, there is no area in law that is more competitive then real estate. Transactions for sales of real estate are usually a flat fee ranging from $450 -%550 plus the discharge of the mortgage. Total fees are likely under $900.00 for the entire sale or less depending if you shop it around. There is no significant room for movement in these fees. Is the possibility of saving someone $100.00 in legal fees when they are selling their home access to justice…I think not.

First, I'll say simply that I believe there's no justification for the monopoly granted to the law societies because there's no quid pro quo, no requirement to serve the public interest at all. The result is self evident. Read Julie Macfarlane's report for example.

And I'll answer one of Mr. Cheifetz's challenges:

"As to the judges' example, you'd have to claim that judges (who are lawyers) shouldn't be allowed to judge any case where some of the parties are lawyers and some aren't, because there'd be a valid concern that the judge would be biased in favour of the lawyers merely because they're lawyers and the judges are, too. You're not making that claim, are you?"

I am making that claim, among many others. I've been there, more than once. And, being both reasonable and informed, I know what I'm talking about. The entire Canadian legal establishment is in denial.

I can't imagine why the "CEO of the LSUC" would chose not to reply to you when you approach the situation from the position that he, and the LSUC generally, are incapable of acting properly.

As I said, given your views, I still wonder why you'd not go to the proverbial horse's mouth for an explanation from those who filed the motion for their explanation for why they withdrew the motion , rather than going (in your terms) elsewhere on the horse and then complaining you'd didn't get a response. That's a "News of the World" level stunt.

As I also said, different coloured glasses. In any event, the "conflict" will continue only so long as there's perceived to be not enough lucrative (enough) work for all seeking to stick their heads (or other parts of their anatomy) in the trough.

As for the merits – I'll assume you read Mr. Morris's report. If you did, you'll have read these paragraphs on p. 12:

Research commissioned by the Law Society, which is presented comprehensively in the report of its five-year review – the veracity of which I find no reason to challenge – indicates that three-quarters of surveyed paralegals view the Law Society as the appropriate regulatory agency, while only nine per cent do not. The remainder is unsure of the alternative.

Submissions to this review, even those that raised concerns with aspects of regulation, suggest that the Law Society is universally viewed as the appropriate regulatory body within the broader legal community.

The Law Society research, supported by key stakeholder submissions to this review and to the Law Society’s five-year review, indicates generally high rates of satisfaction across multiple dimensions of regulation within the paralegal sector.

My understanding that Mr. Morris is not a lawyer. For what it's worth, he doesn't describe himself as a lawyer in the report. He put "MBA" behind his name. The Ontario Attorney-General's website describes Morris as "a professional writer, communicator and strategist".
http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/paralegal_review/default.asp.

Perhaps you have reason to doubt the veracity of the data provided to Mr. Morris. I'll leave it that I'm not aware of a reason to assume he's been co-opted by what you see as the evil empire.

Cheers,

David – We clearly have watched two different Convocations. And, as Roy's link indicates, there is already conflict between lawyers and paralegals; conflict that will only continue to grow as long as the regulator is so heavily controlled by lawyers.

first: your conversation suggests this is an associate issue, which it is, but it's also a lawyer-at-every-stage-of-their-career issue, equally applicable to partners and of counsel and others. Let's make sure that everyone understands the concepts because they're equally beneficial for all.

second: I agree with the idea of establishing metrics that allow folks to demonstrate their value beyond "how many hours were you in the office last week?". I'd pull some additional detail from your article to adding a bit more on a metric for flexible work that nothing to do with hours at all … For employees I've supervised with flexible work options, we simply shifted our focus away from office hours/time and toward articulating and delivering the results or outcomes I wanted them to provide: so, for instance, at the beginning of the week, I'd say: I need x, y and z, provided in this fashion, by Friday. They either agreed, or pushed back if I was asking for something they were not equipped to deliver for whatever reason. But once we agreed, off they went, and I no longer cared if I was able to document how many hours it took them or where the employee was. If they turned in what I'd ask for on time and as requested, I had the only proof I needed that they were contributing excellent value. I also in many cases had the proof to demonstrate that they were delivering more than the matyrs slaving in the office but not accomplishing as much. And a nice side benefit is that this shift in thinking makes "pricing" their work to clients easier and more consistent, since we'd defined the product and they were encouraged to work as efficiently and effectively as they could. They didn't get rewarded or paid more for spending more time on a matter, and we began to copy their work process and ask others in the office to implement it. Isn't it much better for everyone when we're judged by the result we delivered rather than the amount of activity we're generating? But this requires follow through – you have to start billing and compensating based on performance to defined results, and not just on the timesheet, too.

Debra Epstein Henry has a great book out on these topics that may be of interest to those who want to dive deeper – it's called "Law and (Re)Order."

"I am only suggesting that if one believes at all in the free market idea that most people pursue their self-interest, it is reasonable and appropriate to ask – as this post does – whether they have done so."

If the herring in the first clause were any redder, it would be wearing a Flames' uniform. Or, too often, this year, the colour of the light behind the Flames' net, and the Canuck's net, and the …

Of course it's appropriate to ask the question. But the answer should depend on what's been done, not on doctrine.

Anyway, your grounds aren't apt because, as you know, the regulators aren't permitted to act their self-interest.

Cheers,

Your examples aren't apt. They all involve issues where lawyers have equal duties towards multiple clients. That's not the LSUC's situation in the regulatory context. It's primary duty is to the public: not lawyers, not paralegals.

The reason is that Lawyer groups and paralegal groups aren't the regulators "clients" in the sense that produces the jurisprudence on duties of good faith and conflict avoidance. The LSUC is required to regulate in the public interest. You know where the provision is in the Law Society Act. (For those who don't, It's in s. 4.2.3 of the statute: "The Society has a duty to protect the public interest.". Here's a link to the statute: http://canlii.ca/t/l355.)

You seem to believe the LSUC is inherently incapable of properly performing that regulatory function. What that amounts to, in my view, is the claim that, at any given time, the majority of the lawyers who are benchers will be unable or unwilling to comply with the LSA's mandate.

Any regulatory body, whether part of a law society, or not, will have to be made up of competent people. That means people with adequate knowledge of the area they're regulating. Whether or not you like it, that means there will be lawyers on the regulatory body. If your claims of unavoidable conflict are valid, they'd exist just as well for the lawyers on that board and, for that matter, the paralegals. The solution would have to be a regulatory body with no lawyers or paralegals on it, no?

As to the judges' example, you'd have to claim that judges (who are lawyers) shouldn't be allowed to judge any case where some of the parties are lawyers and some aren't, because there'd be a valid concern that the judge would be biased in favour of the lawyers merely because they're lawyers and the judges are, too. You're not making that claim, are you?

In any event, you believe there's an inherent conflict in the LSUC regulating both the lawyer and paralegal part of the profession. I don't, even though I suspect I'm more cynical than you about much of the practicing-lawyer side of the legal profession. You seem to be regard the situation through what I'd describe as jaundiced-coloured glasses. I'll say merely that you should consider taking them off. It's not a matter of my wearing rose-coloured glasses. It's a matter of not approaching the situation with the preconceived notion that the members of the regulatory body are incapable of acting properly.

Cheers,

Which is why it's probably for the best that me and the legal profession have parted ways.

When the CEO of LSUC tweeted about the withdrawal I asked him for an explanation and got no response. From my contacts who attended the AGM, I understand that the question of "why?" was raised at the AGM, but not answered.

LSUC was only recently given the mandate to regulate paralegals – one, that as I pointed out, it should have declined due to the obvious conflict.

Avoidance of conflicts is a core value of the profession.

I understand your comments about Christian two-legged male lawyers. But let's consider some more relevant examples.

A judge is not permitted to adjudicate a matter involving her family or friends. In fact, judges who retire then go back into private practice and appear in front of their judicial peers, or act against counsel they once adjudicated, are now subject of hot debate.

I am not permitted to act for a buyer and a seller in a land transaction.

Given these examples, it stretches the credibility of LSUC that lawyers should be able to regulate a direct competitor.

Lee's comment indicates that the paralegals who brought the motion were "faced with overwhelming reason," (read: "overwhelming pressure").

Simon's comments also suggest that "fear" may have been a factor behind the last minute withdrawal.

Is this the Law Society that we want to be part of? One in which paralegals are afraid to challenge the existing order?

If Benchers don't like my passion to make the profession better for the public and for lawyers/paralegals, and if they are unhappy with my comments – I can live with that.

Doctors don't refer to non-doctors because there's no circumstance analogous to lawyers facing SRL's in legal actions. It's a situation unique to the legal business.

However, if you want to consider what choice of terminology reveals about the legal culture then you have a goldmine to explore. Currently, I'm looking at the use of various terms for an issue of great concern to me: what I'm calling "gatekeeper devices". Another non-lawyer yesterday brought to my attention "triable issue", while someone else recently had discovered the delightful "facially plausible" (actually it was "facially implausible"). The first gatekeeper term I had encountered was "prima facie case". There are others. I've also been told that I have failed to present "sufficient evidence of an apparent case", and "a reasonable cause of action" and that my action was "frivolous", "vexatious" and even "an abuse of process". Then there are the "clearly irrational" cases. I don't know that I've exhausted the list yet.

Why are there are so many terms that mean essentially the same thing (in that they have the same result)? I think it reveals a very serious problem.

As a paralegal, as much as I hate to admit it, lawyers and paralegals are not equal. It is only in the arenas we descend into, and the rules imposed on those arenas is where equality is found.

For the lawyers out there: although not equal, we are stakeholders in the "justice system" and lawyers will have to find a way to acknowledge that fact.

I don't think it is defying credulity to suggest that there may be an issue with a body composed primarily of lawyers regulating both lawyers and those who compete with them. It's a reasonable apprehension of bias question: how would the reasonable and well-informed person view this?

Further, I would suggest that the onus to demonstrate the capacity to regulate in the public interest rather than in the interests of the profession lies with the law societies themselves. They may be able to discharge that onus but I think it is fair to ask whether they have done so.

To be clear, I am not suggesting that it is impossible for lawyers to regulate lawyers in the public interest. I am only suggesting that if one believes at all in the free market idea that most people pursue their self-interest, it is reasonable and appropriate to ask – as this post does – whether they have done so.

First: If one really want to know why the motion was withdrawn, why not ask those who caused it to be withdrawn? My recollection of the LSUC email I received – I didn't keep it – was that it withdrawn at the request of the people who filed the motion. Sometimes one should first go to the horse's mouth (or the other end as appropriate).

Otherwise, statements such as "So we are left to speculate." and "This is why the motion was important and why I remain concerned about how LSUC and Ontario Benchers operate." could be taken to indicate that the writer believes there is something nefarious going on.

Second: the LSUC has been given the statutory duty to manage people engaged in the practice of law, as that concept is defined in the statute. If paralegals are engaged in the practice of law, then the LSUC is required to manage them. You are correct that there is the potential for competition and conflict between lawyers and paralegals to the extent that both groups are entitled to and want to perform the same service. But, that same potential exists between lawyers.

Your point, stripped of its rhetoric, amounts to the claim that the Benchers, because they are primarily lawyers, will prefer lawyers (as a group, or individually) over paralegals (as a group, or individually) regardless of the public interest.

I'm sure you see the problem with that statement without me having to go farther but, to make sure everyone reading this gets the point, let's change our preference categories to something many people will be more familiar with.

Would you have claimed that the Benchers will prefer male lawyers and paralegals over female because most of the Benchers are male?

Or Christian male lawyers and paralegals over all others because most of the Benchers are nominally Christian?

Or two-legged male lawyers etc.?

Or, where the competition is between lawyers, their friends?

If you wouldn't, then what you're claiming is that there's something about the relationship between lawyers and paralegals that makes it necessary for us to conclude that, at least as a group – therefore necessarily individually in some cases – the people who make up the Benchers will put self-interest (meaning the interest of lawyers) ahead of the public interest (whatever that means).

If I were a Bencher, I'd be pissed at your suggestion I'm incapable of putting the public interest ahead of my own.

Actually, if you're right, and if we take your argument to its logical conclusion – I don't need to quote the Latin phrase, do I? – somebody prepared to be a Bencher, or who has been a Bencher, isn't qualified to be a judge in Ontario. I'm sure you didn't mean that.

If your point is that lawyers ought not to be governing paralegals merely because the potential for competition for business (hence conflict) means its not in the public interest, then admit it up front.

Switching topics, I admit that I got a chuckle out of reading your reply to Edward. That's because, at least in your writing on SLAW you tend to speak about lawyers as if our practices are essentially fungible. I'm relieved to see that that's merely an artifact of limited space.

Edward – I find when I speak to lawyers across the country that we truly do live in silos – we each believe that our own practice area accurately reflects what others do, that the issues are the same, and that our own experiences are true across the profession. Can paralegals do everything a lawyer does in all practice areas? Nope. Can paralegals be doing more in some practice areas? Yes. This is why the motion was important and why I remain concerned about how LSUC and Ontario Benchers operate.