Friday, November 14, 2014

@RoundTableLaw's To Do List for the New Benchers #law #alberta

The Law Society of Alberta has announced the results of the 2014 bencher election.  The results can be viewed here.

Congratulations to the winners, and to those of you were unsuccessful this time around, thank you for putting your name forward.

I'd like to give the winners a short to do list for your term:

First, a shift in focus from reactionary discipline of lawyers to proactive support for ethical, sustainable practice.  The Law Society of Alberta is already moving in that direction, your job is to make sure the shift gains momentum.

Second, a commitment to evidence-based regulation. Do something only because it is either proved to help, or it is capable of being proved to help, and require the proof.  Stop doing what doesn't work, or can't be known to work. Because every additional rule and regulation has a real cost for lawyers, particularly solo practitioners, and must be justified with a real, as opposed to imagined, benefit for the public, because what is bad for sustainability of solo practice is bad for the public.

Third, take a technology-neutral position with regard to law firm administration. Eliminate mandated software that is expensive and complex.  Get out of the way of lawyers who are trying to use technology responsibly to be efficient and convenient.

Fourth, declare that there is an attrition crisis in the legal profession, that it is disproportionately affecting women, that it bad for our profession and for the public, start tracking retention as a key performance indicator, and make enhancing the availability to junior lawyers of sustainable solo practice a strategic objective.

Good luck, and thanks for your service.

Monday, October 27, 2014

Ask RoundTableLaw: Are things like @CheckStopEdm criminal? #shpk #yeg

What follows is legal information for the education of the public, not legal advice with regard to a particular situation.  If you need legal advice, obtain it.
@CheckStopEdm is a twitter handle that reports the location, and advice for avoiding, check stops in the Edmonton area.  A Check Stop is a police operation designed to randomly stop drivers to check for impaired driving and other offenses.

In fairness to @CheckStopEdm, they assert on their twitter profile that their service is for people whose blood-alcohol content is below the legal limit to operate a vehicle.  I'm not sure that proclaiming your avoid-the-police service is intended only for non-criminals actually helps in any regard, but there you have it.

Someone on Facebook asked the question, if a drunk driver were to read and follow the @CheckStopEdm advice and injure someone on the alternative route would @CheckStopEdm be liable for those injuries?

That is an interesting question, but to me, it's the wrong question.  The more immediate question is this: Is publicizing the location of a police check stop, causing a drunk driver to avoid it, an obstruction of a peace officer in the performance of their duties in contravention of the criminal code?

Note that this question doesn't require the drunk driver to hurt anyone.  It just requires the drunk driver to exist, and to avoid detection.

There is a case from BC in 1971 in which two undercover police officers were attempting to arrest pan handlers.  I apologize, but I don't have a publicly available link to the case.  After arresting one pan handler, and being observed doing so, they were followed around as they patrolled the area on foot by two individuals who repeatedly pointed the two police officers out to everyone around as undercover police.  Those two were charged with obstruction of a police officer in the performance of their duty.

The judges in British Columbia Court of Appeal carefully considered the history of cases regarding warning people about speed traps, and decided that yes, making yourself an early warning system for an undercover police officer constitutes an obstruction of justice.

The BCCA decided a crucial issue was whether by virtue of the obstructive action the police were deprived of evidence that they would otherwise have obtained.

Extending that logic, if interfering with undercover cops by announcing their presence is obstruction, and warning people who are actually speeding of a speed trap is obstruction, then it seems at least plausible that warning an actual drunk driver of a check stop is obstruction.

These things always depend on the individual facts of the case.  I can't say for certain generally, and I remind you that this is not legal advice for any particular person.  But if someone came to me saying they wanted to start doing this, I would advise them against it.

Violations of section 129(a) of the Criminal Code carry a punishment of up to two years in prison.

Saturday, October 25, 2014

Bencher Nominee Stats, How I Voted

Of the 38 candidates for 19 positions, on the basis of info from the law society and simple web searches:
8 - called to the bar after the advent of the world wide web
4 - with twitter accounts they have used
10 - are from small or solo practices
100% - percentage of solo practitioners on the ballot who are criminal lawyers
3 - practising law for longer than I have been alive
1 - with a Google Local search result
1 - with a blog
100% - percentage of the lawyers with blogs who have been practising longer than I have been alive (I voted for that guy)
15 - women, which is actually quite good when you consider that the attrition rates for women in private legal practices are terrible.
6/7 - ratio of non-private, non-prosecutor lawyers (in-house counsel, legal aid staff, etc.) who were women.

For my part, I was looking for candidates who were likely either by their vintage (relatively new to the bar) or by their actions (twitter accounts, blogs) to be open to new technology.  I also was looking for candidates who by their actions had demonstrated a commitment to providing legal services to those less fortunate.  I also looked for those who were currently or had experience working in a solo practice, which is where the rubber hits the road in the legal profession.

I'm impressed with the quality of all the candidates, and I thank them all for putting their names forward, and wish them luck.

Thursday, October 16, 2014

5 Qs for prospective Benchers #law #yeg #yyc

The legal profession in Alberta is governed by the Law Society of Alberta, which in turn is governed by a board of directors-like body called the "Benchers."

There is currently an election going on to select the representative of the legal profession who will sit as Benchers for the coming term.

To that end, I thought I'd publish a list of questions I'm interested in hearing answers on.  If any of the Benchers run across it, I'd be happy to have their answers.

1. The Law Society of Alberta has as one of its strategic objectives the promotion of retention and diversity and inclusion of lawyers toward the goal of access to justice.  Since the attrition rate for female lawyers in private practice is three times the attrition rate for male lawyers, do you agree that the law society should acknowledge that this problem affects women disproportionately, and take steps to address that inequity?  What steps would you recommend?  Do you believe that retention of women lawyers in private practice should be a formal Performance Measure for the Law Society?

2. Do you believe that the Law Society's regulation of law firms should not advantage entrenched corporate entities, and that rather than dictating expensive means, law society regulations should specify desired outcomes, and allow individual lawyers to find the most efficient means of achieving those outcomes?

3. Do you believe that sole practitioners and small firms are disproportionately impacted by regulations of every type, and that sole practitioners and small firms, as the largest part of private practice lawyers, should be the first hypothetical against which the appropriateness of all proposed regulation is tested?  Do you believe that sole practitioners and small firms are adequately represented in the LSA's governance structure?

4. What do you think the law society's approach should be with regard to advising lawyers on new technologies? Should the law society proscribe and endorse certain technologies, or be technologically agnostic - provide information on risks and benefits, both practical and ethical, and allow clients and lawyers to make informed choices?

5. Do you believe the resources that the law society spends educating, supporting, and assisting lawyers in adhering to best practices are appropriately balanced with the resources that the law society spends disciplining members for failing to adhere to those practices?

Friday, October 03, 2014

"Uhhhh... what?" A response to 2014 SCC 59 #scc #law

So according to the Supreme Court of Canada, the right to access the superior courts is found in section 96 of the constitution, by implication. Which means that it is not subject to being overridden by legislation, like the measly common law right of reasonable access we had until now; and it is not subject to being overridden by reasonable limits in a free and democratic society, like the rights in the Charter of Rights and Freedoms (piddly things like life, expression, and the right to vote).  It is now as sacrosanct as the exclusivity of the federal government's right to raise a military.

Just to take a single real-world example, what might this mean for provincially enacted section 96 court rules regarding, say... limitation dates?  Those pesky rules that say if you are going to sue, you have to do it by a certain time?

Is that an infringement of your right to access the courts?  Well yes, in the now traditional sense of the infringement of rights under the Charter.  But if we're talking about section 96... the question is not about your rights, it's about jurisdiction, and becomes something like: are limitation dates in pith and substance a restriction on access to the courts, or in pith and substance a matter pertaining to the administration of courts?

Constitutional law just got old-school. At least paramountcy won't come up, because the courts don't legislate.  I mean, yet.  Goodness knows what else is in section 96, I guess.

OK, let's try this again.  So section 92 gives the provincial government the right to administer the court system, but not the ability to do anything in administering the court system that would constitute an infringement on the jurisdiction granted to the superior courts under section 96, which jurisdiction includes the right of individuals to access those courts?  Uhhhh... what?

This is hard to unpack. Analogy time.  Jurisdictions are like national borders, right?  You control what is inside them, you don't control what is outside them.  And so the right of access to the courts in this analogy would be like the right to visit another country.

So, by analogy, it is a violation of the territorial integrity of the United States if I can't afford to go there.

No, I'm still lost.  Does anyone else understand what is going on?