The articles discusses the current disparity in remuneration between the genders and steps firms can take to end the gender pay gap.
The full article can be found here.
Erin's article Ending the Gender Pay Gap in Law was recently published in the Women in Law Issue of the ABA's Law Practice Today digital publication.
The articles discusses the current disparity in remuneration between the genders and steps firms can take to end the gender pay gap.
The full article can be found here.
The Professional Development and Competence Committee of the Law Society of Ontario commissioned a survey to research the experiences of articling students as part of its licensing process review. The survey was aimed at lawyers who had completed their articles between 2014 and 2017. A summary of the results was recently released.
The Law Society reported that while the survey was undertaken as part of the review of the licensing process, one section of the survey related to sexual harassment and racial and gender discrimination. The Law Society decided to make the report public to “add to the current conversations around harassment and discrimination, and to help facilitate a wider discussion and champion a necessary culture shift”.
One of the questions asked was: “At any time in your articling process, do you feel that you faced any comments or conduct related to your age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex and/or sexual orientation that was unwelcome?”
21% of the 1471 respondents of the survey answered “Yes”.
When asked: “At any time in your articling process, do you feel that you faced any unequal or differential treatment related to your age, ancestry, colour, race, citizenship, ethnic origin, place of origin, creed, disability, family status, marital status, gender identity, gender expression, sex and/or sexual orientation?”
17% of the respondents answered “Yes”.
These numbers are not insignificant.
Other information in the survey revealed that while most of the respondents were paid above $40,000.00 (36% were paid between $40-60K and 32% were paid more than $60k) there are still articling students who are paid nothing (4%) or who are paid less than $20k (8%) for their articles. With 64% of the respondents indicating that they articled in costly Toronto or the GTA, it is hard to imagine how they can survive financially on no income or less than $20k.
A summary of the survey results can be found here.
Flex Lawyer Caitlin Beresford Authors Article on the Destruction of Indigenous Residential School Records
On October 6, 2017, the Supreme Court of Canada ruled, unanimously, that the collection of documents for the independent compensation assessment process (IAP), a part of the Indian Residential School Settlement Agreement, should be destroyed unless survivors choose to have their records preserved. The Court found that the IAP process was meant to be a “confidential and private process” that claimants and alleged perpetrators could confidentially rely on.
Read Flex Lawyer Caitlin Beresford's thoughts and legal analysis of the case in her article "Indigenous residential school records can be destroyed, Supreme Court rules....but should they?"
Caitlin started her freelance lawyer practice in 2017 and she assists lawyers and law firms in the areas of Aboriginal law, environmental law and criminal law. Prior to freelancing, Caitlin articled at the Ministry of Aboriginal Affairs, conducting historical, archival, and legal research on various topics, such as land claims, the duty to consult, flooding, Métis, and Treaties, among others. She participated in land claim negotiations and community meetings, and provided litigation support. Once called to the Bar in Ontario, Caitlin moved to Yellowknife, Northwest Territories and worked as a senior legislative advisor, providing expert advice on federal, provincial, and territorial legislation and legal affairs relating to Aboriginal land claims and issues, parks and tourism, mining, access to information and privacy, and the arts. Since her return to Ontario, Caitlin has worked with a community legal clinic on Aboriginal family law and with the legal services branch of the Ministry of Education, providing legal advice to clients on Aboriginal law, the duty to consult, child care, education, administrative, and public law.
Contact us if you have questions about the paper or if you would like to hire Caitlin to assist your law firm or legal practice.
There have been some changes happening at the Law Society in the last few months. Below is a quick run-down of some of the new developments:
1.LSUC No More
On September 28, 2017 the Benchers voted 38 to 11 to stop using the name Law Society of Upper Canada. On November 2, 2017 the Benchers voted to change the name to Law Society of Ontario, effective January 1, 2018. While a survey was sent to licensees with options for the new name, some lawyers expressed displeasure for not being consulted on the name change in the first place. More on this update can be found here.
2.Statement of Principles
In December 2016, after a four year consultation process, Convocation adopted 13 recommendations contained in the “Challenges Faced by Racialized Licensees Working Group Final Report”. One of those recommendations was for a requirement that all licensees create and abide by an individual statement of principles that acknowledges their obligation to promote equality, diversity and inclusion generally and in their behaviour toward colleagues, employees, clients and the public.
Some lawyers opposed the implementation of this new requirement. Opponents argued that the requirement imposed beliefs on lawyers and is contrary to the Charter. On December 1, 2017, Bencher Joe Groia filed a motion before Convocation requesting conscientious objectors be exempt from the requirement. The motion failed by a vote of 16 to 38. More on the Statement of Principles can be found here.
Also on December 1, the Law Society approved, in principle, an action plan to help improve access to justice, which includes establishing a special licence for paralegals and others with appropriate training, to offer some family law legal services.
The action plan was developed in partnership with the Ministry of the Attorney General, in response to the 21 recommendations outlined in the Family Legal Services Review, which considered whether a broader range of service providers could deliver certain family law legal services. More on this initiative can be found here.
The Law Society also approved a report and recommendations developed by the Advertising and Fee Arrangements Issues Working Group dealing with the regulation of contingency fees “to facilitate legal representation at a fair and reasonable cost”. The recommendations include:
The latest edition of Precedent Magazine hit our desks and the internet today. Flex's founder and President, Erin Cowling, was happy to contribute an article on tips and traps in legal networking, and in particular, how to conduct an "informational" coffee with other lawyers. The article, "Networking Coffees From Hell", can be found here.
(Have you had some unfortunate coffee experiences? Do you have some advice for other lawyers?)
Erin Cowling was quoted in a recent article "Judge strikes lawyer's claim against firm" by Alex Robinson of the Law Times. The article discusses the case of Sachedina v. De Rose where a lawyer sued his former law firm for wrongful dismissal and chose to represent himself in the proceedings. The law firm brought a motion to strike the Statement of Claim as it contravened the Rules of Civil Procedure and breached solicitor and client privilege.
Ultimately the Court struck the 87 paged, 259 paragraphed Statement of Claim in its entirety with leave for the plaintiff to deliver a new Amended Statement of Claim within 30 days. The Law Times article addresses some takeaways from the case, including why it is rarely a good idea for lawyers to represent themselves, and the importance of protecting solicitor/client privilege in wrongful dismissal claims brought by lawyers against their former firms.
While more and more law firms and in-house legal departments are using freelance lawyers for their overflow work, we are still often asked “What is a freelance lawyer” and “Why would I use one?” To help answer these questions, Flex Lawyer Heather Cross has written this helpful blog post “Seven Reasons to Hire a Freelance Lawyer”:
1. You need an associate, but not all of the time.
A freelance lawyer can act as your associate down the virtual hallway. Freelance lawyers can be a sounding board, perform legal research, prepare documents or edit your documents, but you don’t have to provide them with an office, a regular salary or steady work. They are just there when you need them.
2. You are not a bookworm (but we are).
You didn’t get into law to spend hours with your nose in a book or glued to a screen. You want to be in court, meeting clients and being part of the community. However, high-quality legal research and writing are an indispensable part of a successful legal practice.
Believe it or not, there are lawyers out there (like us) who actually enjoy scouring Westlaw for that gem of a case or spending a quiet afternoon typing out a factum. Hire them to help you out and you will be free to spend as much time out and about as you’d like.
3. You don’t know everything.
No one does. The legal world is a complex one, full of niche specialties. There is no way a lawyer can maintain a good understanding of every area of the law. When you run into an area in which you lack experience, hiring a freelance lawyer with the requisite expertise can make you look like a pro.
4. You want a competitive advantage.
You are juggling a million things, and chances are, whoever is acting for the other side is too. But you have an ace up your sleeve—a freelance lawyer who has time and energy to devote solely to developing a winning case for you and your client.
5. You want a life.
Looming deadlines, demanding clients, family obligations, and that pesky human need for food, exercise and sleep make running a legal practice challenging. Hiring a freelance lawyer can take some of the pressure off.
Don’t have time to prepare those application materials because you are in court all next week on another matter? No problem, hire a freelance lawyer to take care of it and you can focus on the case at hand.
Who knows? If you build a good relationship with a lawyer you trust, you could even go on vacation, knowing your work is in good hands while you are away. Mexico, anyone?
6. You want to grow your business.
A freelance lawyer can help you grow your business by:
7. Your clients can’t afford you.
If you have clients who struggle to cover your retainer, hiring a freelance lawyer can make your services more affordable and thus more attractive. Because freelance lawyers have lower overhead, they tend to charge less than the average lawyer. If you hire a freelance lawyer to take care of portions of your clients’ work and pass the savings on to your clients, they will find the process much more reasonable and be happy to pay your hourly rate to conduct the big trial or negotiation. Offering an affordable legal solution can help you attract and keep clients who would otherwise be unable to afford your services.
If you are interested in finding out more about freelance lawyers and their work, feel free to contact us at email@example.com or fill out our request for assistance form.
 If you are sole practitioner or in a small firm, having another person “on-call” can also makes potential clients feel more confident that you will be able to handle their matter.
 For example, if you need assistance with a criminal appeal, I am a great resource. I have worked on criminal appeals to the Ontario Court of Appeal and the Supreme Court of Canada for the past five years.
 Or, what the heck, just hire them to write the whole article or paper.
By Heather Cross
“May you live in transitional times” could be the modern criminal defence bar’s equivalent of the ancient Chinese curse, “May you live in interesting times.”
The Ontario Court of Appeal’s decision in R. v. Picard illustrates the level of uncertainty that exists and will continue to exist in the criminal justice system while the “transitional exceptional circumstances” set out in R. v. Jordan remain in play. Jordan was a Supreme Court of Canada decision released last summer that reworked the framework for determining Charter applications for stays of criminal charges based on unreasonable delay.
Under the transitional regime, courts dealing with cases that were in the system prior to the release of Jordan have to apply both Jordan and Morin, the leading case prior to Jordan. If the court determines that it was reasonable for the Crown to have relied upon the law as it existed under Morin in regard to the delay in question, the delay will not count against the Crown.
Picard was a case that got caught between Morin and Jordan. While the trial judge dismissed the first-degree murder charge against Mr. Picard on the basis of unreasonable delay, the Ontario Court of Appeal overturned the decision, finding that the trial judge erred in her application of Jordan’s “transitional exceptional circumstances.” While conceding that the charges would have been stayed under Jordan, the Court of Appeal found they would not have been stayed under Morin, and it was reasonable for the Crown to have relied on Morin.
Incarcerated for nearly four years, released for nearly nine months after the charges were stayed, re-incarcerated after the Court of Appeal decision and now facing a trial set for April 2018, it has been a long road for Mr. Picard.
However, the general public likely has little sympathy for this “accused killer”, as he is referred to in the media. It is amazing what a difference the type of crime involved makes to people’s attitudes. When I was working on the Supreme Court of Canada case of R. v. Cody, most people immediately wanted to know what charges Mr. Cody was facing. After they discovered that Mr. Cody had been charged with relatively low-level drug dealing, they were ready to at least entertain the argument that the charges against him should be dismissed due to delay. However, their attitude changed when discussing charges for violent crimes. While they could understand the import of speedy trials, they could not accept people “getting away with murder” on a “technicality” like delay.
I understand the sentiment; however, it is important to recognize that it is sentiment, not logic. Logically, the level of Charter protection applied to a case should not depend upon what the accused individual has been accused of doing. When people read “accused killer”, they too often skip over the “accused” part and focus solely on the “killer” part, forgetting that accused people, whether they have been accused of shoplifting or murder, are legally innocent.
While the Court of Appeal’s decision focused primarily on other factors, the seriousness of the offence was certainly one of the factors it considered:
First degree murder is the most serious offence in the Criminal Code. Given the serious nature of the alleged crime, there is a heightened societal interest in a trial on the merits. The trial judge appears to have interpreted the Supreme Court of Canada’s decision in Williamson as standing for the proposition that the seriousness of the offence was neutral. As a result, she failed to take this interest into account. In Cody, the court makes it clear that, when doing the Morin analysis in the context of the transitional exceptional circumstance, the seriousness of the offence remains a significant consideration: paras. 70-71.This passage highlights what I consider to be one of the most positive changes made by Jordan: whereas under Morin, the seriousness of the offence could be taken into consideration as part of the 11(b) analysis, under Jordan it cannot.
In my opinion, if anything, 11(b) of the Charter should be applied even more strictly in cases involving serious crimes than those involving lesser crimes:
Unfortunately, Mr. Picard’s case has been caught in the transitional maelstrom.* However, the Court of Appeal’s statement that the charges would have been dismissed under Jordan provides a ray of light for defence counsel bringing 11(b) applications in murder and other serious cases under Jordan. Now that the seriousness of the offence can no longer be considered, hopefully 11(b) will be applied equally to all charges. Whether we are dealing with an “accused killer” or an “accused shoplifter,” the focus should remain on the “accused” part.
* Word on the street (and in CBC News) is that Mr. Picard will be applying for leave to appeal to the Supreme Court of Canada. It will be interesting to watch how this plays out.
Heather Cross is a Flex freelance lawyer who assists other lawyers and law firms in the area of criminal law (drafting facta, appeal books, legal research and drafting) and assists with Supreme Court of Canada agency work.
While many lawyers and law firms have added blogs to their websites, several still struggle with successfully using their blog to generate business. To help, Flex has written “A Blogging Guide for Lawyers: How to Leverage Your Blog for Business Development”. In this Guide we provide our “Top 5 Tips” for using your law blog to generate traffic to your website and eventually have new clients retain your firm. You’ve invested time working on your blog, you should make sure you are getting the most out of your investment! You can access our guide here.
(And for lawyers who do not have a law blog but are planning on starting one, check out “Are You Planning to Start a Law Blog?” and “Let’s Chat About Legal Blogging” by Eva Chan, a lawyer turned social media strategist.)
Do You Offer Contingency Fee Arrangements in your Law Practice? Be Aware: LSUC Considering Regulatory Changes
Many lawyers, in particular personal injury lawyers, are paid through contingency fee arrangements (“CFAs”), where the lawyers charge their clients a fee based on a percentage of the damages recovered by their clients (the amount of money the client ‘wins’).
It wasn’t until 2004 that the Solicitors Act and the Rules of Professional Conduct were amended to authorize CFAs in Ontario with respect to claims being brought by individual litigants (CFAs have been allowed in class proceedings since 1994). The legislature and the Law Society of Upper Canada (“LSUC”) recognized that CFAs can provide access to justice to people of limited means.
However, the legislation governing CFAs has been far from clear. Recently, Justice Hoy in the case of Hodge v. Neinstein commented on the language of the legislation:
It can fairly be said that the language in the Act has created difficulties for lawyers and clients for many years . . . Courts have also struggled with the language, since much in the Act is not clear: see, for e.g. Gilbert’s LLP v. David Dixon Inc., 2017 ONSC 1345 (CanLII),  O.J. No. 1037 (Div. Ct.). The case before this court represents another struggle to make sense of the Act.
In addition to the confusing language of the Act, the Advertising & Fee Arrangements Issues Working Group of the LSUC has noted that, while CFAs play an important role in access to justice as they allow people who may not be able to afford lawyer’s fees to pursue litigation, some lawyers are taking advantage of these clients in vulnerable positions. The Working Group wants to enhance consumer protection for CFAs noting that there has been “widespread noncompliance with the current regulatory requirements governing Ontario’s contingency fee regime”.
After asking for comments on the current state of CFAs and holding a series of meetings with plaintiff and defence side personal injury lawyers in the spring of 2016, in June 2017 the Working Group suggested several changes to the current governance of CFAs in its Report to Convocation, including:
1) Making a mandatory standard form to be used for all contingency fee agreements.
2) Making changes to the Solicitors Act to require that contingency fees be calculated as a percentage of the all-inclusive settlement amount or all-inclusive amount awarded at trial, less disbursements. This differs from the current calculation that the fee is based on the percentage of the total settlement amount less recovery on account of disbursement and legal costs, which is difficult to calculate. This can also create an inherent conflict between the lawyer’s interest and the client’s.
3) Putting in place safeguards to ensure fees are clear, fair and reasonable including putting a limit on fees by a percentage cap or other means; potentially requiring the client to obtain independent legal advice in certain situations before the fee is paid; recording the time spent on CFA matters, and advising the client in the final account of the client’s right to apply to have legal fees assessed.
The Working Group wants to hear from lawyers, paralegals and the public about these potential changes by September 29, 2017. If you use CFAs in your practice it is important for the LSUC to hear your opinion on this matter. You can make submissions online here.
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