I have long been an advocate for greater diversity in law, in all of its forms. One of the main barriers we faced in the legal industry in the 20th century was gender diversity, and it’s a barrier that is still with us today.
Yesterday we celebrated International Women’s Day. Two recent studies out of Ryerson University help illustrate contemporary obstacles.
The first looks at leadership roles in the business sector by examining female representation in senior positions at major corporations in Toronto. Although there has been some growth between 2009-2014, women still remain underrepresented. Gender disparities have even led to the Ontario Securities Commission to consider requiring companies on the TSX being required to list the number of women in directors and executive officer positions.
Before women can even advance into leadership roles though, they need to have positions that allow them to develop the experience to become leaders.
The second study looks at problem solving for scientific output, and demonstrated that gender heterogeneous teams perform much better. This might sound intuitive to those familiar with the business case for diversity, but the authors claim that this is the first empirical study to show this definitively.
Extrapolating this to the legal industry, we need to have more women in partner positions, as benchers, and leading our legal organizations. In order to do so, we need to better value the contributions that women make to the legal profession. The 2011 Maytree report into diversity of the legal profession suggests we are still far from that goal. Retention of women, we repeatedly hear, is the major problem that law firms face,even though firms are reluctant to share numbers.
As a man who frequents events hosted by the Women’s Legal Education and Action Fund (LEAF), Women’s Law Association of Ontario (WLAO) and others, I am often asked by women how we can get more men involved in gender issues. The answer to that question for me should be simple, because it stems from issues of equity and fairness that we should all have an interest in.
There are also selfish motivators available for those who need it, namely that pushing issues that are normally gender stratified such as family responsibilities has the potential to transform work-life balance for men as well. The quality of living of all lawyers, women and men, are improved by recognizing the need for a holistic approach to career satisfaction, which necessitates outside interests.
International Women’s Day is about women. But it’s also about everyone else, and how we can take this profession to the next level and outperform the previous generation of lawyers.
A couple of weeks ago Monday (the third Monday in February to be exact) as I toiled away at my desk here in Nova Scotia it occurred to me that my electronic distractions were uncharacteristically quiet that day. My twitter feed was silent, and my inbox was actually manageable. I did not spare this much thought until later in the day when it dawned on me that in most of the of country it was a statutory holiday, be it Family Day or Islander Day or Louis Riel Day. My bitterness at being one of the few jurisdictions that required folks to trudge through a February Monday was short lived owing to the knowledge that next year, 2015, Nova Scotia will have its very own February holiday as per the aptly named, February Holiday Act.
In an indubitably Nova Scotian way; however, the pending February holiday is not without controversy and conjecture. In the lead up to the passing of the act and official government announcement popular opinion seemed to tilt towards naming the day in honour of Viola Desmond. It is not an understatement to say that Viola Desmond is Nova Scotia’s Rosa Parks, in short Ms Desmond struck a blow for desegregation in Nova Scotia based upon her choice of a seat in a movie theatre in New Glasgow in 1946. (Select the link to her name for a more thorough description of her life and times.)
In February of 2015 the third Monday in February in Nova Scotia will indeed be Viola Desmond day; however, what the day will be called in 2016 or 2017, or 2018…. is, as yet unknown. In that indubitably Nova Scotian way we are going to rename the holiday each year, after Nova Scotian students make submissions to a panel who will make a selection…. by all means let’s not do this the easy way, let’s create something we can argue over publicly every year rather than name a day in February, Black History Month no less, in honour of an individual whose achievements deserve to be honoured in the province and celebrated outside Nova Scotia’s borders.
As you might have gathered, I am personally not a fan of this decision, as I believe the naming of this day was a ceremonial lay up that was easy to follow through on. I also find it a bit distasteful that Nova Scotia is quick to celebrate its status as a popular destination on the underground railroad but too often struggles to come to terms with the uncomfortable racial history that exists here, to which I would point to the naming of Viola Desmond Day 2015, but not 2016, nor 2017 nor 2018, nor….. as tangible proof.
Only a fool says “nuncle.”
Used to be part of my favourite mock Elizabethan phrase, feeling good in the mouth: “Prithee nuncle…” But now I know that there never was a “nuncle”. I had thought it was one of those English words that shed the initial “N” because of the possessive “mine” or the indefinite article “an” on account of the way the combo got pronounced: “My nuncle” / “A nuncle” –> “mineuncle” / “anuncle” –> “mine uncle” / “an uncle”. In the world of linguistics this is known as rebracketing (or metanalysis, which sounds too grand to me), where peceived pronunciation ultimately changes word boundaries. You can hear it starting to happen today with the the article+noun “an other”, which almost no one pronounces with a little break (glottal stop?) after “an”, and few with the “an” pronounced like “Anne”; rather, it’s very close to “uh nother.” So watch for the new word “nother” to appear in media near you soon.
“Nuncle”? Well it turns out that Shakespeare in all his works has only the Fool say it a dozen times or so in Lear, which goes to show you what he thought of rebracketing in his day.
Similar thing did in fact happen with “mine aunt” and it got rather more traction that the fool’s hold obtained by “nuncle.” Thus, the mistaken “naunt” could be found in practice from about the 13th to the 17th centuries, according to the OED.
A bunch of other English words have been rebracketed, many losing an initial “N” rather than gaining one. “Adder,” the snake, was once properly “nadder”, as it is today in the German Natter. “Apron” once had an “N” at the start, from the Old French napperon, something we can still see with “napery” (though I’m not sure of my etymology here). “Orange” is often thought to have undergone this same process, and it did but not in English: once having an initial “N” – narang in Persian, naranja in Spanish — the fruit and the name wandered slowly into colder climes and some place in France lost the initial “N”, arriving in England eventually as the “orange”.
Other words picked up the otiose “N” along the way. “Ewt” became newt well before Shakespeare’s Second Witch tossed in the eye of one along with the toe of a poor frog. And nickname was once an “ekename” — eke (additional) + name, which is better than the sometimes touted etymology that has the “nick” of nickname meaning Nick, a name for the Devil.
And there are two of these transformers with vague connection to things legal: umpire and nonce. Here’s the Wiktionary etymology for umpire:
“Nonce” happened even earlier, moving from something like Early Middle English Þan ones (something like “the one time”?) to the modern — well, more nearly modern — expression you’ll sometimes find in legal documents.
And that’s it for the nonce. Except for me to leave you with a rebracketed spring flower, because it’s supposed to be spring soon. “Daffodil” — a favourite of mine and the bulb the squirrels won’t eat — got the “D” in Netherlands, quite likely. The daffy plant is affodillus in Medieval Latin, with a good classical Latin and Greek heritage; the guessing is that in Netherlands, where the definite article is de, ”de affodil” turned into our daffodil.
Professor David Post’s 2009 book , In Search of Jefferson’s Moose, is one of my favorites. Professor Post juxtaposes ideas about creativity and risk-taking as embodied both in the thinking of Thomas Jefferson and in the development of the Internet. It sounds like an odd pairing but it works. Post tells the reader at the beginning that the book represents ideas he has juggled throughout his career, so he writes freely. Reading it brought home to me important truths about the Internet. Post’s thesis is that the band of engineers who created the end-to-end freeway that is the Internet, erected it to be a neutral medium. They made the governing rules and decision-making structure intentionally opaque. Rather like a game where each level grows more difficult until the player gives up in frustration.
This was done to protect the Internet from the inept and ham-handed meddling of governmental bodies and the grasp of corporate interests guided only by the light of the bottom line. Maybe information could not be free, but its transmission should be. Post’s book recounts how at one time a single person, Jon Postel, then a graduate student at UCLA, stood at the center of the labyrinth. Better to trust an engineer solely concerned with making the system work smoothly than allow anyone with a substantive agenda to get a hand on the wheel.
As the Internet burrowed its roots into the life of most humans on the planet, this elaborate diversion became imperiled. From the outside governments could filter it, advertisers could manipulate it and the forces of Large Data could arise from the academy and allow governments and businesses to use the Internet to aggregate each of us into a profile. But the information highway remained open to all. Presidential documents, news, shopping, pornography and cat videos all traveled the same superhighway. Now a greater danger lurked, could the highway itself be controlled? Should the freeway be protected from the free market? Whose Internet is it anyway?
A recent decision of the D.C. Circuit Court of Appeals will be important to this debate. In FCC v. Verizon, Judge David Tatel wrote that the FCC’s rules on net neutrality for telecommunications companies do not cover internet service providers (ISP).
The opinion is a fine example of the problem we face when trying to divine where the Internet is headed. The D.C. Circuit Court of Appeals, though the equal on paper of the other U.S. Courts of Appeal, is known for being in a class all its own. Sitting in the District of Columbia it is the forum for many high profile federal issues. With gimlet eyes the Senate watches who the President tries to appoint to that Court because it has been a conduit for Supreme Court nominees. On this exalted Court, Judge Tatel is known as one of the keenest thinkers. Ergo there is a trifecta: big issue, important Court and respected judge authoring the opinion. So who won? Verizon won. And what does that mean? It’s hard to say.
Is it the beginning of the end of a world where my daughter-in-law’s blog travels just as fast as traffic to Amazon? Or is Judge Tatel performing a classic judicial trick? In enunciating what good policy ought to be (net neutrality) but which the rule does not allow him to follow, is the Judge maneuvering to force the FCC to change the designation of ISPs to that of common carriers? Or is Judge Tatel genuinely working to keep government away from the issue? After all, if the FCC can protect net neutrality it is implied that the FCC can do as it pleases with net neutrality. A good summary of the arguments can be found at the Motley Fool.
Though the decision came down only one month ago, a million people have signed a petition coordinated by FreePress directed to the FCC to pull the Internet back under the covers of net neutrality. At the same time the Electronic Freedom Foundation, the dare-to-die defenders of free access to information, would rather let things lie outside the clutches of governmental regulation. As Ray Davies of the Kinks sang,” It’s a mixed-up, muddled up, shook up world….”
When things are muddled up, it is best to pay close attention. The next few years might well define the future parameters of the Internet. The outcome will affect the lives of most of us. Yet the policy making is done as if through a glass darkly. If only some wise, objective body could guide us. Maybe we should give it back to the engineers.
You may have read yesterday that the Massachusetts Supreme Court decided that a man who covertly took photographs and videos up the skirt of a woman sitting opposite him on a trolley did not violate the local peeping tom law. The court felt it was unable to subsume the accused’s behaviour under the particular, and admittedly awkward, wording of the statute. This is a creepy matter, a creepy subject, and I raise it here for no salacious reason but out of a sense of frustration that such behaviour “could not” be proscribed under Massachusetts law as currently written. And I wonder whether readers here can provide arguments that show the court to be wrong — or, at least, not necessarily right.
There is no doubt that statutes drafted to counter yesterday’s mischiefs will increasingly be inapt to deal with today’s technological means of invasion of privacy. And it seems more than likely that the Massachusetts legislature will act quickly (and with due consultation with its draftspeople?) to rectify this omission. But might or should the decision have been different?
The relatively brief slip opinion in Commonwealth of Massachusetts vs. Robertson (SJC-11353. Suffolk. November 4, 2013. – March 5, 2014) is available via the link above, on Slaw. It contains essentially what any critic would need, quoting the relevant statute at sufficient length. I’d be interested in your arguments.
The February 2014 issue of Connected is available online.
The bulletin covers news about the impact of new social media on courts.
Most of the items are about the United States, but there is coverage of other jurisdictions from time to time. The bulletin is published by the Virginia-based National Center for State Courts (NCSC) and the Conference of Court Public Information Officers.
In this issue:
- NCSC’s Social Media and the Courts Network gets an update (a new site that provides information on how courts are currently using social media)
- Courts using social media to warn public of scams
- Harvard’s Neiman Journalism Lab takes a look at social media and the courts
- Pennsylvania’s courts tweet about the fines, fees, costs and restitution it collected and distributed in 2013 ($455 million US!!!)
Learn About the Future of Law From Disruptive Innovation in the Market for Legal Services Webcast – Live Now
There is a great live webcast from Harvard today (March 6) on disruption and the future of law. It is a must listen if you are interested in these topics.
Live stream is here: http://video.isites.harvard.edu/liveVideo/liveView.do?name=plp
Conference Hashtag: #PLP_Disrupt
Featured Speakers are:
Chris Kenny, Chief Executive, Legal Services Board, Harvard Business School
Clay Christensen, Professor of Business Administration, Harvard Business School
William Hubbard, Incoming President of the American Bar Association
Mike Rhodin, Senior Vice President, IBM Watson
10:00 a.m. – 11:30 a.m. The Nature of Disruptive Innovation in Professional Services
Keynote: Clayton M. Christensen, Kim B. Clark Professor of Business Administration, Harvard Business School
Response: Mike Rhodin, Senior Vice President, IBM Watson
John Suh, CEO, Legal Zoom
Sarah Reed, General Counsel, Charles River Ventures
11:30 a.m. – 12:00 p.m.
12:00 p.m. – 1:30 p.m. The Role of Regulation
Keynote: Chris Kenny, Chief Executive, UK Legal Services Board
William Hubbard, Senior Partner, Nelson Mullins, LLP, incoming President of the American Bar Association
Ian Tod, Chairman, Deloitte Legal
Christina Blacklaws, Director of Policy, Cooperative Legal Services
Andrew Finkelstein, Managing Partner, Jacoby and Meyers
1:30 p.m. – 3:15 p.m. Working Group Sessions with boxed lunches
Working Group 1 – Innovation in Access to Legal Services and Knowledge
Working Group 2 – Innovation in Legal Analytics and Big Data
Working Group 3 – Innovation in Lawyers and Technology
Working Group 4 – Innovation in Corporate Matching and Pricing
3:15 p.m. – 3:30 p.m.
3:30 p.m. – 4:30 p.m. Responses from Working Groups
4:30 p.m. – 5:45 p.m. The Effects on Clients, Technology, Education, and the Profession
Thomas Sager, General Counsel, DuPont Company
Richard Susskind OBE, Professor, Oxford University (via video link)
Martha Minow, Dean, Harvard Law School; Member, Legal Services Corporation
5:45 p.m. – 6:15 p.m. Where do we go from here?
Speaker: David B. Wilkins, Lester Kissel Professor and Director of Program on the Legal Profession, Harvard Law School
6:15 p.m. – 7:30 p.m. Reception
When the Accessibility Standards Advisory Council/Standards Development Committee was formed in 2013, one of its first orders of business was to review the Customer Service Standard as required under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). The AODA requires that each accessibility standard be reviewed five years after it becomes law to determine whether the standard is working as intended and to allow for adjustments to be made as required.
The council has proposed several changes to the Customer Service Standard and is asking interested stakeholders for feedback. Proposed revisions include using different terminology to make requirements clearer, matching the requirements of the Customer Service Standard with similar requirements in other accessibility standards, adding wording to clarify the intent of requirements and correcting inconsistencies across the standards. Public feedback on the proposed revisions will be accepted from March 3 to April 16, 2014.
Application and definitions
The Customer Service Standard applies to all organizations (public, private and non-profit) that provide goods or services either directly to the public or to other organizations in Ontario and that have one or more employees in Ontario.
The council’s proposed changes would align the application requirements of the Customer Service Standard with the other accessibility standards. This means replacing the definitions of “designated public sector organization” and “provider of goods and services” with the seven class structures and their associated definitions under the other accessibility standards:
- Designated public sector organization
- Government of Ontario
- Large designated public sector organization (50+ employees)
- Large organization (50+ employees)
- Legislative Assembly
- Small designated public sector organization (1–49 employees)
- Small organization (1–49 employees)
Also, the term “provider of goods and services” would be replaced with “obligated organization” to match the other accessibility standards.
These changes would mean that requirements under the Customer Service Standard that currently apply to organizations with 20 or more employees (e.g., reporting, written documentation) would now apply to organizations with 50 or more employees. Organizations with 20 to 49 employees would continue to be required to establish policies, practices and procedures governing the provision of goods or services to people with disabilities. However, these organizations would no longer be required to prepare documents describing their policies, practices and procedures or to provide these documents (if they exist) upon request.
Besides replacing the definitions of “designated public sector organization” and “provider of goods and services,” the council also proposes adding a general provision regarding the application of “reasonability” and “practicability” in the context of meeting the requirements of the standard. This change is “intended to clarify to obligated organizations and people with disabilities that both parties need to work together to take into account an individual’s needs, and the organization’s capacity to meet those needs.”
Policies, practices and procedures
The council recommends changing references to “policies, practices and procedures” throughout the Customer Service Standard to “policies” to match the other accessibility standards.
The council proposes to expand and modify the definition of service animal for a person with a disability so that an animal qualifies if:
- It has been trained to provide assistance to a person with a disability that relates to that person’s disability; and
- It is “readily identifiable” that the animal is used by the person for reasons relating to his or her disability; or
- The person provides a letter from a regulated health professional confirming that that person requires the animal for reasons relating to the disability.
Additional language is proposed to clarify when an organization may require a support person to accompany a person with a disability for reasons of health and safety as follows:
- This would only occur where, after consultation with the person with a disability, requiring a support person is the only means to allow the person to be on the premises and at the same time fulfil the provider’s obligation to protect the health and safety of the person with a disability and that of others (i.e., the health and safety risk cannot be eliminated or reduced by other means); and
- Any considerations on protecting health and safety must be based on specific evidence and not on assumptions
The council would replace the Customer Service Standard requirements on who must be trained and when training must be provided with the following simplified language:
Training must be provided to:
- All employees and volunteers;
- All people who participate in developing the organization’s policies; and
- All other people who provide goods, services or facilities on behalf of the organization
Every person must be trained as soon as practicable.
Organizations must provide training on any changes to its accessibility policies on an ongoing basis.
The council recommends three changes to section 7, “Feedback process for providers of goods or services,” of the Customer Service Standard.
First, to clarify that obligated organizations must adopt a process to accept and respond to feedback on the way they provide goods and services rather than the accessibility of their goods and services themselves, the heading of section 7 would be changed to “Feedback Process on the Accessibility to Provision of Goods or Services.”
Second, to align the language in the Customer Service Standard with the Information and Communication Standard, the section would specify that obligated organizations must ensure their feedback process is accessible to persons with disabilities by providing or arranging for the provision of accessible formats and communication supports, upon request.
Third, the council proposes specifying that when communicating with a person with a disability, an obligated organization do so in a manner that takes into account the person’s disability. (Currently, the Customer Service Standard covers this in section 3, “Establishment of policies, practices and procedures.”)
Notice of availability and format of documents
The council proposes three changes to the language of the Customer Service Standard to make it consistent with the Information and Communications Standard with respect to the availability, provision and formats of documents.
- The scope of section 8, “Notice of availability of documents,” would be expanded to include any information and communication that an organization provides to the public
- Obligated organizations would have to provide accessible formats and communication supports upon request in a timely manner and at a cost that is no more than the regular cost charged
- Rather than simply permitting the obligated organization and the person requesting the information to agree on the format for the information, organizations would have to consult with the person making the request to determine the suitability of an accessible format or communication supports
What this all means
Since the Customer Service Standard was the first of the AODA standards to be completed and enacted, it is not surprising that there are inconsistencies between it and the newer standards. The drafters of the Employment, Information and Communication, Transportation, and Built Environment Standards had much more input from stakeholders to rely on, besides having the opportunity to learn from the process that led to the Customer Service Standard. Making the standards consistent should help organizations understand the requirements.
However, it’s possible that many organizations won’t notice any difference at all if these revisions come to pass, since relatively few have begun the process of complying with the Customer Service Standard anyway, despite the deadline to file accessibility plans long since passing. Obligated organizations were to report to the government by the end of 2012 how they were meeting the requirements of the Customer Service Standard, but according to the Toronto Star, as of November 2013, only 30 percent of organizations had done so.
No doubt the government will prefer to nudge rather than push organizations into compliance, so it may seem that there is still little rush if you are one of the 34,000 organizations that hasn’t filed a report. But the obligation remains, and in the wake of the compliance figures, the government has reasserted its intention to enforce the AODA. The government plans to conduct 1,700 compliance audits in 2014.
If the revisions are accepted, organizations with 20–49 employees can rest a little easier as they will no longer have to prepare or provide written documentation as a matter of rule. However, they could still be ordered to do so. Other than that, the changes are mainly housekeeping. They may appear to expand the requirements of the Customer Service Standard, but more likely they will simply make explicit some provisions that were previously unclear.
Feedback will be collected by the Ministry of Economic Development, Trade and Employment and provided to the Advisory Council. The council will then review the public comments before finalizing its proposed revisions and submit its proposed revised Customer Service Standard for the Government of Ontario’s consideration. Public feedback will be reviewed but may not be adopted into regulatory amendments.
Comments can be provided using this feedback form (PDF). The form can then be submitted to the ministry by:
- Email: CSStandardFeedback@ontario.ca
Customer Service Standard Review Feedback
Accessibility Directorate of Ontario
777 Bay Street, 6th Floor, Suite 601A
- Fax: 416-327-4080
- Alternate format: If you require an alternate format or communication supports to provide your feedback, call 1-877-300-4024 or TTY: 1-888-335-6611
Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.
Solicitor-Client Privilege for Ethics Counsel: Lessons for Canada from the United States
Stephen G.A. Pitel and Jordan McKie
(2013) 91 Canadian Bar Review 313
(Footnotes omitted; they are available in the original, via the CBR link, and in the pre-publication version via the main hyperlink above.)
(c) Privilege and Ethics Counsel
While there is no Canadian authority on point, the American experience indicates that a Canadian law firm should be able to establish a solicitor-client relationship with its own ethics counsel. Law firms, like any other business, may consult internal counsel as they would outside counsel, and privilege attaches to legal advice or a request for legal advice which is intended to be confidential. To refuse to apply solicitor-client privilege for law firms would, as the court in Sunrise aptly noted, punish them by “holding them to a standard which has no counterpart in any other sphere of the business or professional community”. There is no principle in the Canadian jurisprudence which indicates that law firms possess some characteristic which would justify disqualifying them from having privileged communication with counsel. While it is true that lawyers have duties to their clients as fiduciaries, and that such concerns may impact the assertion of privilege for communications which relate to the representation of a current client, the threshold of establishing privilege in the first place should be no higher for law firms than for other firms. So long as the firm consults the ethics counsel for legal advice, and pays the lawyer for those services, as opposed to simply having the function carried out as an unbilled component of the duties of one of the managing partners, the relationship should be seen as one of lawyer and client. The policies which firms establish regarding the consultation of the ethics counsel can mandate a level of discretion which should establish the requisite level of confidentiality.
(d) Exceptions to the Privilege
The more difficult question is whether, as in the United States, exceptions to this privilege will significantly erode its utility. As we have seen, one exception arises when the ethics counsel is in a position of conflict of interest. In the Canadian context, a conflict of interest can arise as a result of concerns about confidential information and it can also arise as a result of concerns about loyalty to the client. Another exception relates to the question of agency, looking at whether the lawyer consults ethics counsel on behalf of the client or as client himself or herself.
(i) Conflict of Interest Based on Confidential Information
The courts that decided Sunrise and similar cases held that a conflict of interest occurred when a law firm represents itself by consulting its ethics counsel in matters regarding a current client.
By preparing itself for litigation against a current client, the firm cannot maintain its objectivity in its handling of the client’s case. The interest of the firm and the interest of the client are therefore at odds. Because the courts were prepared to accept the use of outside counsel for defence against a current client, it was the use of in-house ethics counsel, rather than the act of preparing a defence against a current client in itself, which created the conflict. This, as we have seen, rested in part on the assumption that each lawyer in the firm is the lawyer of the client and that a conflict of any one lawyer is imputed to them all.
How would Canadian law handle concerns about ethics counsel having confidential information about the client’s matter? In particular, the concern is that that ethics counsel would have the same information as the lawyer in the firm who is handling the client’s matter. This is different from the situation in which the firm retains outside counsel. In that context, the firm is permitted to disclose confidential information in order to obtain advice. However, in accordance with the general importance of preserving confidentiality, that disclosure should be limited to the information necessary for that purpose. Outside counsel would have sufficient information to provide advice but would not typically have the same amount of confidential information about the client and his or her matter than the lawyer handling that matter. . . .
. . . .
Canadian law should evolve in directions that support the use of ethics counsel by law firms. One dimension of such an evolution is that Canadian courts should accept that solicitor-client privilege can arise in respect of communications between ethics counsel and other lawyers at his or her firm. Law firms should not be treated differently in this regard than other service firms like those in accountancy, insurance, banking, finance and telecommunications. Beyond this basic principle, the difficulties then lie in working out, on a case-by-case basis, whether the appropriate preconditions to privilege exist and whether the privilege is defeated by any exceptions.
Law firms face something of a dilemma in consulting ethics counsel. If there is no tension between the firm’s interests and the client’s, the agency exception might defeat the privilege. On the other hand, if there is such a tension then the resulting conflict of interest, most notably as a violation of the duty of loyalty, might have the same effect. To avoid having the privilege defeated, the advice from ethics counsel must be sought by the firm as client rather than as agent for the firm’s client. The advice must also be provided in a manner sensitive to concerns about conflict of interest. That requires law firms to take certain structural steps in organizing the position of ethics counsel. It also requires a particular understanding of how the duty of loyalty operates in this context. This article has outlined several steps law firms can take to maximize the likelihood of a successful claim of privilege. These include segregation of ethics counsel within the firm and unique compensation arrangements. These steps could be sufficient for courts to conclude that the communications are protected. However, the law is more likely to evolve in that direction if law societies provide some specific guidance, in the rules of professional conduct, for the role of ethics counsel. Evidence that a firm has followed such guidance would carry weight with a court considering a claim for privilege.
Without your clients you don’t have a firm and yet, according to the findings of the recent Canadian Lawyer Corporate Counsel Survey, most clients (80.4% of those who responded) aren’t being asked for feedback from their main law firm in a structured and meaningful way.
So let’s agree that every firm needs to implement some form of a client feedback program. Depending on your firm goals, size, resources and budget your program will look different. It should have elements of the type of formal program to which Canadian Lawyer alludes, but a robust client feedback program has to be more than just a survey or interview administered once a year. A firm needs to instill a culture of “client listening” amongst every member of the firm and be serious about making changes based upon what they hear, even if they are politically or culturally difficult. A firm should find multiple opportunities throughout the year, at various touch points in a relationship, to learn about the client and their perception of their firm and its lawyers.
Over the years I’ve worked with firms on a number of alternative avenues for client listening that have helped to achieve their goals. Examples include the following:
Formal Client Feedback Program – These structured programs send a clear signal to clients surveyed that their firm cares enough to ask their opinion but can be laborious to administer and need buy-in from the relationship partners involved. You can reduce costs by using an on-line survey for the bulk of those from which you wish to receive feedback and by using your in-house director of business development, in addition to your Managing Partner and Executive Committee, to perform face-to-face interviews with key clients. Whenever possible, relationship lawyers should not perform the feedback interviews with their own clients. Remember, it’s imperative that you act on the feedback that you receive due to the formal nature of these interactions.
For example, when I performed an annual feedback interview with a firm’s top client, he shared his concern for the future of the relationship since the lead partner was due to retire. He explained that with their aggressive plans for the future they needed a lead lawyer who would be aggressive for them too. The lawyer who had been “tagged” internally to succeed this relationship did not fit this description but when I brought back these concerns to the team they were discarded as an issue they would deal with “in the future” and they would “make it work”. A huge opportunity to protect the relationship, and open a discussion about future projects, was wasted, and only time would tell if this risky approach to client feedback would pay off.
Mid-File and Post-File Meetings – A good time to speak with your client is at the half way point in the matter as this gives you time to address existing issues, which may be as complicated as staffing or as simple as the timing of meetings. Once the file is complete, a more formal post-matter debrief session should be held with both the law firm and client team in attendance. I’ve heard from a number of clients that they find these to be invaluable not just as an avenue for them to share their thoughts on the law firm’s performance but also as a forum for them to discuss internal issues such as project management.
Informal Feedback – If yours is like most firms, you have numerous opportunities throughout the year to meet your clients in less formal settings, be they for educational or entertainment purposes. These are wonderful opportunities to ask your clients for feedback in a relaxed and open manner. I’ve found that often the most simple, but valuable, information can be gleaned from such interactions.
While working with one law firm, I was responsible for the relationship management of one of their top clients. While attending a cocktail party to celebrate the closing of a major transaction, I learned how satisfied a senior client contact was with our work. But as the conversation progressed he shared with me that although we were his first choice for day to day legal work, he wouldn’t use us for his ‘bet the bank’ litigation work. No one has so frankly explained our position in their legal roster before and with this information we were in a position to realistically assess our future share of wallet.
Such an example reinforces the need for a team debrief with all who attend major events available to discuss, and record, such feedback, note follow-ups and assign accountability for such.
Social Media Listening – One outlet that many firms are not taking advantage of is social media. It’s easy to keep track of interactions on Twitter, LinkedIn, blogs, etc. and setting up a Google Alert for your firm and lawyers couldn’t be easier. The key to making the most of these avenues is interaction – if someone tweets kudos about your firm, publicly thank them on twitter. If they express dissatisfaction, reach out to them via the same medium and ask to take the conversation offline so you can better understand their frustrations.
Staff Interactions – The person who often speaks to the client may not actually be the lawyer but the legal assistant or paralegal. They can receive informal feedback from the client that they wish to share with the lawyers but aren’t comfortable doing so. One example I remember was an LAA who had received a lot of calls from a senior member of the client team and each time the partner either wasn’t there or wasn’t available. The client was obviously frustrated about the situation. Ensuring that you have a culture of listening in place will help to ensure that such information reaches the right ears and can be acted upon.
So let me stress, it doesn’t matter if you have the best client feedback program in the industry. If you fail to listen to what your clients tell you, directly or indirectly, and don’t take action on what you hear, you’re asking for trouble. I’ve heard grumblings from clients over the years that it’s almost worse to be asked for feedback that’s not acted upon than not to be asked at all – almost, but not quite.
We all know that it’s easier, and cheaper, to get new work from a current client than a new client and that referrals are the second most important source of business. So the issues I’ll leave you with are these.
- No matter what type of program you implement, how, and who, will aggregate and analyze the information coming from clients?
- How will you record the specific feedback from each client and follow-up on it so that they know they were heard?
- Do you have a CRM system in place with the ability to segregate sensitive data, if necessary?
- What take-away will be registered for those clients who decline to participate in a formal program?
If you can find ways to address these issues, you’re well on your way to great ‘client listening’ and satisfied clients.