The Power of Perspectives

The Canadian Bar Association
Legal marketplace

The Big Four in legal: Will sophisticated buyers really bite?

By Yves Faguy January 25, 2018 25 January 2018

 

In my year-end interview with Jordan Furlong, the Ottawa-based legal market analyst gave his take on why the move by the Big Four accountancies in the legal space is significant. The long and short of it is that they are really more interested – for now – in “run the company” work, meaning the daily grind of legal operations, risk management and compliance. Though it may not be particularly glamorous work, there is a risk for law firms in ceding too much ground to the Big Four, as this is the kind of service that allows them to build, over time, stronger and stronger bonds with their clients.

On a similar note, Joel Barolsky offers six reasons why he’s is skeptical that sophisticated legal buyers will turn to the Big Four for bet-the-company matters.  One of them is an issue we looked at recently – the partnership model:

While the revenues of the Big 4 are over 12 times that of the world’s largest law firms, their DNA is still based on a traditional partnership model. This means they operate with many of the cultural, operational and financial constraints of law firm partnerships.

The winners of the future, especially in the non-BTC segments, are more likely to be law and technology companies (like Axiom and Elevate Services) with nimble and lean management capabilities, clear strategic focus, the ability to deliver it and access to capital. The Big 4, as well as most incumbent law firms, will struggle against these competitors.

 

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Trade

New Pacific trade deal: Timing is everything

By Yves Faguy January 24, 2018 24 January 2018

New Pacific trade deal: Timing is everything

After yesterday’s announcement that Canada is signing on to a revised Pacific trade deal – the Comprehensive and Progressive Agreement for Trans-Pacific Partnership – with 10 other countries, the question is how it will affect NAFTA talks.

Cyndee Todgham Cherniak picks up on the federal government’s message that everything at this stage is about diversifying trade:

It is no coincidence that an agreement was reached on the first day of the sixth round of the NAFTA modernization re-negotiations in Montreal Canada.  Canada and Mexico are both signatories to NAFTA and CPTPP.  The CPTPP evolves many NAFTA provisions.  If the United States withdraws from NAFTA, Canada and Mexico can operate under the CPTPP or may choose to operate under NAFTA without the United States.  Both countries have a new option for bilateral trade.

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Competition law

Proposed changes risk undermining Competition Bureau's immunity program

By Yves Faguy January 24, 2018 24 January 2018

Proposed changes risk undermining Competition Bureau's immunity program

The CBA is making the case that the Competition Bureau's Immunity Program is not in need of an overhaul and proposed changes undermine the incentives on applicants to self-report – a key tool for tool for enforcing the criminal provisions of the Competition Act.  From its submission letter released yesterday, and signed by National Competition Law section Chair Anita Banicevic:

A fundamental premise of the Program is that a cooperating party should not be made “worse off” by self-reporting to the Bureau. However, the proposed revisions impose new obligations on immunity applicants and introduce significant uncertainty in the timelines for cooperation. In addition, the proposed revisions create exposure to new risks for the applicant, by abandoning the existing “paperless process” and by creating recordings of privileged proffer exchanges and witness interviews that may be the subject of future production and discovery demands. The proposed revisions also substantially extend the timeline for when an applicant could receive a binding immunity agreement from the PPSC.

With these new burdens and risks, the CBA Section believes that an applicant could be placed at a distinct disadvantage relative to non-cooperating parties, particularly in responding to anticipated civil litigation. Given the misalignment that the proposed changes would create with other international immunity or leniency programs, an applicant may reasonably determine that it is in its best interests to self-report its conduct in the United States and Europe, for example, but not in Canada.

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Technology

Are cities getting too smart?

By Patricia Osoko January 23, 2018 23 January 2018

Are cities getting too smart?

New and emerging technologies have dramatically changed the way cities around the globe operate, increasing their ability to collect and analyze data. While these “smart” cities use this information to better manage resources and services, there has been little debate on the ethics or legality of the data-sharing inherent in these models. The technologies driving these innovations are much more developed than the legal frameworks currently in place to protect individual rights. This should concern us all.

What is a smart city? One that uses data analytics to manage its operations and connect with its citizens better. Integrating information and communication technology and the Internet of Things (the various devices connected to the network), information is collected from citizens and sensor devices to be processed and analyzed. It is then used to improve the efficiency of infrastructure and services, such as government information systems, transportation systems, hospitals, power plants, water supply networks, waste management, libraries, schools and law enforcement—in short, most aspects of modern urban living. This enables better planning and decision-making—but it comes at a significant cost to personal privacy.

 

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CBA influence

How do you solve a problem like privilege?

By Kim Covert January 22, 2018 22 January 2018

 

Bill C-58, An Act to amend the Access to Information Act and the Privacy Act, is a disproportionate response to a problem that doesn’t exist, the CBA said in a December letter to Treasury Board President Scott Brison and Justice Minister Jody Wilson-Raybould.

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Reproductive rights

There’s no Charter problem with Canada Summer Jobs

By Jennifer Taylor January 22, 2018 22 January 2018

There’s no Charter problem with Canada Summer Jobs

It seems self-evident in 2018 that an anti-abortion organization should not receive federal government funds to hire summer students. And yet, the guide for the Canada Summer Jobs program—which requires applicants to attest that the proposed job and their organization’s core mandate respect reproductive rights—has caused an outcry. It’s even prompted an application for judicial review by Toronto Right to Life (TRTL) on the basis that it may infringe the Charter-protected “freedom of conscience and religion of organizations that consider abortion to be immoral” and potentially the Charter’s freedom of expression and equality guarantees as well (to the extent that organizations even have Charter rights, which is debatable).

But the attestation’s opponents are minimizing an essential question: what about the Charter rights of women, like the right to autonomy over their own bodies?

Opponents like Brian Bird emphasize that the Supreme Court of Canada’s landmark decision in R v Morgentaler — a ruling long celebrated as a victory for Canadian women — did not “constitutionally guarantee unrestricted access to abortion in Canada”, as if that provides a complete answer to the question. It doesn’t.

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Corrections

Prolonged solitary confinement unconstitutional

By Yves Faguy January 18, 2018 18 January 2018

Prolonged solitary confinement unconstitutional

 

The B.C. Supreme Court has ruled that Canada’s use of prolonged or indefinite solitary confinement in federal prisons is unconstitutional.

Money quote

"There is an emerging consensus in international law that under certain circumstances solitary confinement can cross the threshold from a legitimate practice into cruel, inhuman or degrading treatment (“CIDT”), even torture."

The B.C. Supreme Court goes on to mention UN bodies who have declared that prolonged solitary confinement mounts to conduct prohibited by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.

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Internet law

B.C. appeals court: Virtual presence enough to enforce production order

By Justin Ling January 17, 2018 17 January 2018

B.C. appeals court: Virtual presence enough to enforce production order

 

Since the Supreme Court passed down its decision last June in Equustek, lawyers have been waiting with baited breath to see just how broad an interpretation the new internet regime will receive from the courts. Global tech companies, including Google, hoped to see the Canadian — and even American — tribunals rein in the ability of our courts to order companies to take actions beyond our jurisdictional borders.

A recent B.C. appellate decision suggests that Equustek isn’t going to be relegated to a tiny corner of Canadian law. It is very much the standard.

What happened with Equustek? Ever last year’s Supreme Court ruling in Equustek that Canadian courts have jurisdiction to make orders for foreign-based internet companies that carry on business in Canada, there have been concerns about the practical implications.

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Corporate counsel

Crisis management in the social media age

By Julie Sobowale January 16, 2018 16 January 2018

Crisis management in the social media age

 

When a crisis hits, you want a calm person at the helm of your crisis management. That’s what Kelly Friedman learned early on in her career.

“If an injunction comes in, I’m the one who is calm in those situations,” says Friedman (pictured above), who is national counsel of BLG’s Discovery Services Group in Toronto, specializing in e-discovery, cybersecurity and privacy. “One partner once told me, ‘Thank you for your equanimity.’ I had to look up the word and it means even keel. The more nervous people get, the more calm I get. It’s a great tool as a litigator.”

Litigators aren’t the only ones who need a calm head. How an organization can weather a crisis is now largely based on who gets the information out first. With the rise of social media and the increasingly rapid news cycle, general counsel must be more prepared than ever to deal with the next crisis.

A situation can escalate quickly through social media. On September 7, Equifax revealed that 143 million Americans and 100,000 Canadians (later revised to 145.5 million and 8,000, respectively) had their data stolen as the result of a data breach. The story quickly became viral, with thousands of Twitter users tweeting under hashtag #Equifax. Within two days of the initial report, the Chief Information Officer and the Chief Security Officer retired and two class-action law suits were filed. Then, over the next couple of days, Equifax accidentally tweeted links to phishing websites (websites that mirror others, normally to steal information) to breach victims, causing further criticism and social media outrage. 

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CBA influence

Cannabis laws could have disproportionate effect on immigrants

By Kim Covert January 16, 2018 16 January 2018

 

The legislation to legalize cannabis in Canada comes hand in hand with proposed amendments to other laws and regulations, including the offences that could lead to inadmissibility under the Immigration and Refugee Protection Regulations.

The CBA’s Immigration Law Section notes that offences in the Cannabis Act are broader than those in the Controlled Drugs and Substances Act, which it effectively replaces, and that the potential impact on permanent residents and would-be immigrants is much harsher.

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Corporate counsel

Chasing the money: GCs move needle on law departments as a cost centre

By Jim Middlemiss January 15, 2018 15 January 2018

Chasing the money: GCs move needle on law departments as a cost centre

 

Joel Schuster is not your typical in-house lawyer. In addition to overseeing the usual legal functions, such as compliance and corporate commercial matters, Schuster, Chief Legal Officer, Senior Vice President and Corporate Secretary at Avigilon Corporation in Vancouver, has responsibility for bringing in revenues.

He is in charge of licensing the patent portfolio at the fast-growing Avigilon, which provides video security and analytic solutions.

That means the legal department has its own profit and loss statement, and the division sets a budget on how much it expects to earn from the 740 patents in its portfolio.

“Our revenues blend with the rest of the company’s revenue,” he explains. “We’re here to contribute what we can. It does help that we can bring in revenues. It makes the budgeting process easier.”

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Blog

Guatemalan lawyer faces death threats for actions against mining company

By Kim Covert January 15, 2018 15 January 2018

 

Everyone deserves to be able to do their jobs without death threats and acts of intimidation and violence – including lawyers working to support the rights of an Indigenous people against corporate interests. Indeed, the United Nations Basic Principles on the Role of Lawyers state in part that:

  • Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; and
  • Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.

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