Contingency Fee Agreement Not a Lottery Ticket: BCCA

Several recent court cases concerning lawyers' fees highlight the necessity for lawyers to take greater care in negotiating and drafting their retainer and contingency agreements. In Slater Vecchio LLP v. Cashman, 2014 BCCA 6, the court overturned two lower court decisions rescinding the firm's $201,600 fee for concluding part but not all of the matters covered in the retainer agreement, but went on to warn that "lawyers need to take greater care in drafting their retainer agreements" given that the language used in this particular agreement supported the client's contention that it was a single contract. The client (a lawyer) is considering an appeal to the Supreme Court on the issue of whether the "entire contract principle" applies when a retainer encompasses a number of discrete proceedings.  

For commentary on these cases see the Slaw post Contingency Fee Lawyers Are Not Venture Capitalists, the Law Times article Judge calls for presumptive validity for 33% class counsel fees and the Lawyers Weekly article B.C. Court of Appeal warns lawyers to take 'greater care' .

For suggestions on how to upgrade your fee agreements see the Attorney at Work post Fee Tale: This Is Not Your Father's Engagement Agreement.

Anti-Spam Law in Force July 1, 2014

Industry Canada released revised and final CASL regulations on December 4, 2013, and confirmed that most of Canada's long awaited anti-spam legislation will come into force July 1, 2014. Provisions dealing with installation of computer programs and the CASL private rights of action will come into force January 15, 2015 and July 1, 2017 respectively. Information about the law and regulations can be found here, in the regulatory impact analysis statement, and in the following articles which discuss the implications of the changes for businesses, charities, and their advisors:  

• Anti-Spam Law to Come Into Force on July 1, 2014 - BLG article summarizing the requirements of the new law and the exemptions;

• Canada's Anti-Spam Law Is Coming - Are You Ready? - snIP/ITs blog post;

• The Waiting Game Is Over: Canada's Anti-Spam Legislation Will Change The E-Communication Landscape - Blakes bulletin.

Ethics Stories

Alice Woolley published her second annual list of The top 10 Canadian legal ethics stories on January 3, 2014. At number 4 on the list is the resignation of the Douglas Inquiry Committee, which Woolley says "has reinforced the perception that the proceedings have gone badly awry, and are undermining public confidence in the fair and effective regulation of the ethics of the judiciary." New on the list this year is a nod to regulatory innovation and change by law societies, which Woolley claims "show a sophistication and engagement on the part of regulators that is to be commended."

Annual Report Reminder

The 2013 Annual Member report is due April 1, 2014. All Manitoba lawyers who had practising status in 2013 must file a report on their continuing professional development activities during the year. For information on the 2013 CPD requirements see the MCPD Requirements page on the LSM website. The report also deals with Law Corporation renewals. The report can be accessed on the Members' Portal. Lawyers who have provided the Law Society with an email address will have received a notification email containing their user id, password, and login instructions.

The Aging of the Profession

The greying of the profession is a popular topic in legal circles these days, with cases dealing with age-discrimination, mandatory retirement and age-related cognitive impairment making their way through the courts and disciplinary panels. The Supreme Court heard the McCormick case on mandatory retirement of equity partners on December 13, 2013, prompting many legal commentators to weigh in on the social justice issues at play in the age discrimination case. Some take the position that extending age discrimination/human rights protections to law firm partners is a slippery slope that will negatively affect the partnership model in law firms and other businesses (McCormick worrisome for partnerships, Canadian Lawyer). Others argue partners should enjoy the protection of human rights codes (Law firm partners deserve human rights protections and Supreme Court of Canada May Finally Clear up Issue of "Employment" in Human Rights Cases). The Canadian Lawyer article The 'insidious fog' discusses how both regulators and law firms are affected by the growing incidence of dementia among senior lawyers and reviews some of the programs in place for addressing the issue.

Best Canadian Blogs

One way to keep up with the burgeoning list of Canadian law blogs and their content is to follow Lawblogs.ca, an open directory of blogs maintained by Stem Legal, which you can browse by subject matter, province, category, or latest post. Every year end Stem highlights the best legal blogs in the country by awarding Clawbies in various categories. The 2013 winners include: First Reference Talks (on employment law); Inside Internal Controls (on risk management implementation); and Canadian Appeals Monitor (on cases from Canadian appeal courts including the SCC).

Building Better Practice Aids

practicePRO, the risk management initiative of the professional liability insurer for Ontario lawyers, has developed a wealth of resources to help lawyers and law firms avoid malpractice claims. From practice checklists for commercial transactions to general retainer agreement precedents, these downloadable materials are an invaluable base from which to build a customized collection of practice aids. Since 2007 practicePRO has published an annual list of top downloads. This Avoid A Claim post identifies the stand-out items from the 2013 list.

Recommended Reading

These practice management publications contain valuable information for legal practice managers:   

• The December 2013 issue of LawPro magazine focuses on the dangers of cybercrime. Among other things, it outlines how to secure your data when using mobile devices, wireless connections and public computers; how to scrub client information on discarded equipment; how to foil hackers; and how to avoid the dangers of email.

• The theme of the January/February 2014 edition of Law Practice magazine is law firm management. It includes articles on all aspects of practice management, from budgeting and technology to law office leadership and culture.

• The latest edition of the CBA's Solo and Small Firm Bulletin contains articles on technology updates, healthy living, and small firm marketing. It also describes the CBA's legal futures initiative.

• CBA Futures Chat: The Future of Lawyer Employment - Jordan Furlong discusses how he believes law jobs will change as the profession shrinks. He invites interested parties to join a Twitter Chat discussion on the topic (hosted by the CBA Legal Futures Initiative) on January 29, 2014.

Leadership Skills Series: Tools, Techniques and Strategies

The Law Society has developed a series of continuing professional development sessions designed to help lawyers become leaders. The next session in the series, Resilience and Embracing Change, focuses on change management. It is designed to help lawyers manage the people side of change and support themselves and their staff through transitions. It takes place February 7, 2014, from 9:00 a.m. to 3:00 p.m. at the Law Society classroom. Presenters Judy Mathieson and Denise Zaporzan will also host upcoming sessions in the series: Generational Diversity: Maximize Performance Throughout Your Organization (March 14, 2014), and Presenting With Confidence (May 29, 2014). Register for more than one session and save money.

Perfecting the Twenty-First Century Law Practice

Don't miss the opportunity to attend a full day program with practice management guru Jim Calloway, Director of the Oklahoma Bar Association Management Assistance Program and a noted expert in law office management, technology, ethics, and legal business operations. Topics to be covered include: the future of law practice, client satisfaction, document assembly and alternative billing, intro to ipad for lawyers, and 60 hot tips in 60 minutes. The program takes place March 7, 2014 at the Law Society classroom. Register by February 21, 2014 to take advantage of the early bird rate.  

Lawyers for Literacy

Manitoba lawyers are invited to participate in the fourth annual Lawyers for Literacy event on Saturday, March 22, 2014 at Crossways in Common. Lawyers for Literacy is a literacy skills promotion and fundraising event in support of West Broadway Youth Outreach. You can help by getting sponsors and volunteering to read to children, by pledging, or by making a donation to the program. For more information email jjones@lawsociety.mb.ca or call her at 926-2026.