Has the Legal Profession Become More Challenging for New Lawyers?

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Having been called to the Ontario Bar in June, I found the Canadian Bar Association’s (CBA) publication on  Legal Trends an interesting read. The CBA publication forecasts that:

With the apparent oversupply of lawyers and stiffer competition from new suppliers, new entrants could be facing a more difficult career path…Lawyers may continue to work long hours as technology turns the marketplace into a 24/7 operation. (p.32)

While this assessment is caveated with non-conclusory words such as “could” or “may”, it is essentially the same “doom and gloom” message recasted and I want to challenge this notion. No doubt the legal profession is undergoing a radical shift, but I don’t believe it is as bleak as many say and here’s why.

It used to be that becoming a lawyer meant having a ticket into the upper-middle class. Many remember those halcyon days of lawyering, but readily forget that the path to become a lawyer was significantly harder back then. Just imagine a young woman (e.g. your grandmother) some two generations ago. If she wanted to become a lawyer, she would first have to possess the determination to pursue this calling despite working on her family farm doing grueling physical labour to make ends meet.  Then, she would also have to buck society trends to postpone marriage as a young lady and complete not only highschool but pursue a university degree and later law school to enter a profession dominated by men.  And once she has become a lawyer, she would have to compete in a sexist culture and face one glass ceiling after another. These are lofty hurdles that, by and large, are diminished today. Thus, in a nutshell, the challenges in establishing a career has not increased with time, but has simply been back-ended.

Paying Lawyers by the Hour

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Rolf Dobelli in his book, “The Art of Thinking Clearly”, writes in Chapter 18 about the concept of incentive super-response tendency.  More simply, people respond to incentives by doing what is in their best interests. Coming to law from the business world, I’ve always been baffled by the billable hour model in law.

If lawyers are paid by the hour, where is the urgency to getting the deal done fast?  Why rush anything when taking longer is not only more comfortable, but also more profitable?  Why bother being more creative and efficient, when mindlessly slogging it out by using the tried-and-true method brings more money in the bank?  I think the answer is clear.  It makes no sense.  This structure incentivizes working longer instead of working smarter. And for this reason, the billable hour model can’t possibly survive.

But it doesn’t have to mean less profits. To the contrary, it means greater profits for the best lawyers at the very best firms. In tomorrow’s legal reality of value-based pricing, a lawyer could theoretically charge a thousand dollars for a minute of work. Customers are paying for a solution. Does it matter whether it takes 5 minutes or whether it takes 5 months to solve the same problem?

Alberta PIPA: Coming Back to Life

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Last year, the Supreme Court of Canada struck down the Alberta Personal Information Protection Act (PIPA), because it violates a union’s freedom of expression by restricting a union’s ability to collect, use or disclose personal information during the course of a lawful strike. The Supreme Court emphasized the need for balance – specifically, a union’s constitutional right to freedom of expression must be balanced with the privacy interests protected by the privacy legislation.

On January 14th, the Privacy Commissioner of Alberta published a letter she sent to the Alberta Government.  In the letter, the Privacy Commissioner proposes that the legislative response that:

…most directly address the constitutional problem the Court stated would be to add authorizing provisions allowing the collection, use or disclosure of personal information by unions for expressive purposes without consent, in the context of picketing during a lawful strike.

In essence, the Alberta Privacy Commissioner is proposing a pragmatic and narrow carve-out exemption for unions. Given that Manitoba and British Columbia’s version of PIPA is substantially similar to Alberta’s PIPA and would similarly implicate a union’s freedom to expression in the context of picketing during a lawful strike, I  anticipate the Manitoba and British Columbia legislature will amend their respective privacy legislation in due time.

For the Privacy Commissioner’s letter to the Alberta Government, see: here

Research Resources for Do-It-Yourself non-lawyers

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At Small Claims court, I’ve encountered ambitious non-lawyer litigants who attempt to conduct his or her own legal research. For those who wish to Do-It-Yourself, I’ve consolidated some of the most common web resources that I use in my own practice and placed them in the menu tab to the left titled, “Legal Resources”.  I’ve also linked to it: here.

Happy researching!

Bullet-Proofing your IT Law Practice: Professionalism and Ethics

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Late last year, I assisted with authoring a summary of a panel discussion on Professionalism and Ethics hosted by the Technology division of the Ontario Bar Association.  Complex issues were discussed surrounding Limited Scope Retainers and Confidentiality such as:

  • How much knowledge can a Lawyer apply that he or she has garnered from previous transactions? At what point does applying past knowledge become a breach of the confidentiality he or she has established with previous clients?
  • How does a lawyer manage limited scope retainers? For example, how does a lawyer who has been asked to review a subset of a constellation of contracts do so adequately while meeting his or her professional obligations?

While the panel was comprised of technology lawyers, these questions are relevant to lawyers in any practice area. The full summary of the discussion can be found: here

 

Cybersecurity Considerations for Public Companies

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An interesting cybersecurity article I had assisted with has been published in Osler’s Corporate Review, and picked up by both Lexology, and the Risk & Compliance Report section of the online Wall Street Journal. This is a worthwhile read for those following cybersecurity developments by following the links above.

 

Mandela and Success

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Often we look to the great heroes of our time for inspiration, and undeniably, Nelson Mandela is a hero among such heroes. The Economist, a magazine that often reserves a one page obituary, dedicated three pages to commemorate Mandela’s lifelong fight against an unacceptable model of racial segregation that was the Apartheid in their December 14-20th issue.

However, the obituary also chronicled Mandela’s three marriages (2 failed).  Politics, his first wife Evelyn said, was his “all-absorbing concern”. Winnie, his second wife, remarked that Mandela, “belongs to them [the people]”. Even the great father of South Africa himself confessed that his children told him once that he was:

…a father to all our people, but you have never had time to be a father to me…

What if this unrivaled commitment is the price for success and grand achievement? Given the choice, would you pay such a price, and more importantly, would you consider this success?

Intellectual Property Education in Canadian Law Schools.

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Barry Sookman recently blogged about intellectual property (IP) education in Canadian law schools. Barry explores whether law schools are doing enough teaching on the intellectual property front in a climate where IP plays an increasingly prevalent role in safeguarding innovation, and by extension, economic progress.  However, pressed on this issue, voices from schools lower on Barry’s list often lament their lack of funding or lack of prestige in attracting renown faculty. But this is no excuse.  All Canadian law schools are capable of the following:

  1. Inspiring the pursuit of IP law. I’ve noticed a general view amongst students that IP isn’t perceived as sexy as headlines-making, large-scale, mergers & acquisition transactions. What is more, many students hold the erroneous belief that in order to succeed, they must come from a technical background. These myths could easily be busted through role-models and an awareness of how a career in IP could unfold. Giving students something to aspire to can light a fire that overcomes many funding barriers regardless of how modest a law school’s resources are.
  2. Career Services Focus on IP.  One significant challenge with law school career services is that students are told they need to commit early to an IP boutique if they want to pursue IP.  IP boutiques offer the best IP training, students are told, but will pigeon-hole an aspiring lawyer to the IP path. In contrast, working for a large full-service firm will grant students more options down the road. This is a quandary that every law student remotely interested in IP wrestles with, and career services must dialogue about this issue with more thought and insight. My  personal view is that it is excellence that gives you options. If you are a stellar IP lawyer, you will find opportunities to migrate into ancillary areas of your interest. If you are mediocre, it won’t matter how diverse your experiences are at whichever full-service firm.
  3. Strategic scheduling of IP courses. It hardly matters if a law school has a smorgasbord of IP courses if those courses conflict with other compulsory courses such as Civil Procedure, Evidence, or Contracts. Law schools with fewer IP course offerings could strategically scheduling these courses to minimize (or remove altogether) conflicts, thereby increasing enrollment. While this may mean having a professor or two stay late to teach during evenings, it goes a long way to leveling the playing field.

Arguably, doing the above can be just as effective as adding more funding and faculty.

Warrant Required to Search Computer Content

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The Supreme Court on November 7th released their decision R. v Vu, stating that search warrants for specific premises must explicitly grant law enforcement officials the right to search content on computers. Computers, unlike cupboard or drawers on a premises, hold virtually a “universe of information” about individuals; information that even individuals themselves may not be aware of, thus giving rise to privacy protections under section 8 of the Charter.

Interestingly, the Court found the charter-infringing conduct not to be egregious and allowed the evidence to be admitted. Thus, strategically, businesses and individuals may wish to consider:

  1. Keeping electronic records on the computer rather than in paper form, thus requiring a judge to weigh whether a more explicit and invasive search-warrant is necessary; and
  2. Encrypting all harddrive data. R v. Vu is an example of how non-egregious charter violations have been overlooked by the court. Thus, even if law enforcement officials erroneously searched your computer, they would not be able to easily decipher the information contained therein.

Should APIs be copyrightable?

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This summer, I had been following the Oracle v. Google case since last year where Oracle sued Google for infringing on its copyright of over 37 Java APIs (Application Programming Interfaces).  While an American case,  Justice Alsup ruled that the Java APIs were not copyrightable.  Justice Alsup stated:

So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical. Under the rules of Java, they must be identical to declare a method specifying the same functionality — even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression. And, while the Android method and class names could have been different from the names of their counterparts in Java and still have worked, copyright protection never extends to names or short phrases as a matter of law.

As a former engineer at BlackBerry, this decision sits uneasy with me — not from a policy perspective, but from an application of law perspective. I’ll explain why.  The essential aspects of copyright law in this case as follows: (1) Copyright exists at the moment of creation; (2) one can only copyright an expression of idea, but not the idea itself; (3) an exception (“Merger Doctrine”) may exist if there is only one way to express an idea, in such a scenario, the creative work is not copyrightable.

Since the Java APIs are undoubtedly an original creative endeavour and an expression of a programmer’s idea, Justice Alsup is relying on the merger doctrine, and the fact that copyright APIs are too short. But something isn’t right. Google did not have to rely on the Java APIs to express their idea — that is, to develop Java platform/applications. They could have used the C language APIs, the C++ Language APIs, Python Language APIs, or any number of other language APIs to do so.

Then, with respect to Justice Alsup’s remark that copyright protection never extends to short phrases, APIs are a collection of short phrases that work in harmony. There must be consistency of design in order for the APIs to be used intuitively by any software developer. Taken as a whole, the Java API as a collective is not short by any stretch.

Alas, this spring, the Electronic Frontier Foundation submitted an amicus brief to the courts, expressing concern that APIs could be copyrightable. Understandably this will impede innovation. I buy the policy argument; it has merit. But I still maintain the decision was an erroneous application of the law.  To this end, this won’t be the last post on the matter.