Virtual and Dispersed Practice
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Presentation on November 27, 2012
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Virtual and Dispersed Practice
- 1. Omar Ha-Redeye Fleet Street Law Professional Conduct and Lawyering Online
- 2. R 3.02 MARKETING • Marketing Legal Services • 3.02 (1) In this Rule, "marketing" includes advertisements and other similar communications in various media as well as firm names (including trade names), letterhead, business cards and logos. • (2) A lawyer may market legal services if the marketing – (a) is demonstrably true, accurate and verifiable, – (b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive, and – (c) is in the best interests of the public and is consistent with a high standard of professionalism.
- 5. 6.03 RESPONSIBILITY TO LAWYERS AND OTHERS • Courtesy and Good Faith • 6.03 (1) A lawyer shall be courteous, civil, and act in good faith with all persons with whom the lawyer has dealings in the course of his or her practice. • … • Communications • (5) A lawyer shall not in the course of professional practice send correspondence or otherwise communicate to a client, another legal practitioner, or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a lawyer.
- 6. WHAT IS FLAMING? • Flaming: An online argument that becomes nasty or derisive, where insulting a party to the discussion takes precedence over the objective merits of one side or another • - (Urban Dictionary)
- 7. WHY DOES FLAMING OCCUR? Dissociative Anonymity Minimizing Invisibility Authority Online Disinhibition Effect Dissociative Asynchronicity Imagination Solipsistic Introjection
- 8. PIG RULES OF PROFESSIONAL CONDUCT • Pig Rule # 1: Never wrestle with a pig—you only get dirty; and the pig likes it. • Pig Rule # 2:Never try to teach pig to dance – it wastes your time; and it only annoys the pig. - Eugene Mehan, “Civility as a Strategy in Litigation: Using it as a Tactical Tool” (via http://www.supremeadvocacy.ca/)
- 9. DUAL CONCERN VS. DUEL CONCERN
- 11. CONCERNS OVER CIVILITY • Honourable Coulter Osborne, Civil Justice Reform Project: incivility contributes to adverse effects on access to justice. • Honourable Patrick LeSage and Professor Michael Code, The Report of the Review of Large and Complex Case Procedures: incivility contributes to complexity and cost of proceedings
- 13. LAW SOCIETY ACT, R.S.O. 1990, C. L.8 • Licensing – Good character requirement – (2) It is a requirement for the issuance of every licence under this Act that the applicant be of good character.
- 15. LSUC DISCIPLINE • 2004-2007 complaints about professionalism grew from 11 per cent to 30 per cent • 2010: complaints about professionalism accounted for 33 per cent • regulators can reprimand lawyers for conduct in private lives • “We have the ability to discipline them for inappropriate conduct if it brings the legal profession into disrepute.” - Malcolm Heins, Law Society CEO
- 17. COMPLAINTS ABOUT CIVILITY • formal and remedial proceedings both exist • numerous factors reviewed: – the nature and seriousness of the allegation – lawyer’s response – lawyer’s history of complaints • Only initiated once a complaint received • Proceedings Authorization Committee order a prosecution through Law Society hearing – range of penalties: Warning to licence restrictions – Suspension, loss of licence
- 19. OPEN QUESTIONS? • Should LSUC discipline unbecoming conduct online? – Should a warning system be put in place first? – Should there be guidelines developed and issued to assist the profession? – Should LSUC stay out of licensees’ online conduct entirely?
- 20. MORE INFO • Ha-Redeye, Omar and Tarantino, Bob , Overview: The Rules of Professional Conduct and Their Application to the Legal Profession Online (and Off). Internet and E- Commerce Law in Canada, Vol. 12, No. 11, March 2012. Available at SSRN: http://ssrn.com/abstract=2140435
- 21. CONTACT http://www.omarha-redeye.com/ Omar@FleetStreetLaw.com @omarharedeye http://ca.linkedin.com/in/torontolawyer http://www.facebook.com/#!/TO.Lawyer
Notas do Editor
- http://www.youtube.com/watch?v=EnawSQUqf1w
- Young, ambitious and intelligent, Ryan Manilla was, by almost all accounts, on the road to becoming a first-rate lawyer. He excelled at Osgoode Hall Law School, graduating in the top 10 per cent of his class. He won a summer job in the New York City offices of Davies Ward Phillips & Vineberg, one of Canada’s leading firms. In 2009, he completed his articles with Pinkofskys in Toronto, where he intended to practise criminal law.But in September, Manilla’s career came to a crashing halt. The Law Society of Upper Canada (LSUC), which regulates Ontario’s lawyers and paralegals, denied his application to join the profession, based on its ages-old “good character” requirement. (Manilla’s appeal was heard last week, and a decision is pending.) It wasn’t a strictly professional issue that convinced the law society panel to bar Manilla—it was the young man’s dealings with his condominium board.Canadian law societies have required lawyers to be “of good character” virtually as long as the profession has been regulated, but it’s rare for someone to be barred because his character was found lacking. Even the meaning of “good character” can be a little bit hazy: it isn’t defined in the Law Society Act, but it’s been described as having a strong moral fibre, a belief the law must be upheld, and an appreciation of the difference between right and wrong. The law society can wield that requirement to decide who gets to be a lawyer—and sometimes, who doesn’t, as the Manilla case shows.In 2008, as board president, Manilla became embroiled in a dispute over an increase in condo fees, which he opposed. After sending unsavoury emails to his fellow condo board members suggesting they ran “the risk of being shot by residents,” he was replaced as president, but stayed on the board and continued to fight the proposed fee hike, boasting that he got a thrill out of making other members “squirm.” That December, Manilla forged a letter from a woman claiming to be a private investigator, making up allegations of kickbacks and other wrongdoing among board members—something the law society panel deemed “character assassination.”In March 2009, Manilla, then 27, was charged with four counts of criminal harassment; further charges followed of intimidating a witness, threatening death, and failing to comply with an undertaking given to a police officer. In June, all charges were dropped after Manilla met certain conditions. He sold his condo, apologized to targeted board members, and made a donation of $250 to the SickKids Foundation in their names. But not enough time had passed, the law society panel ruled, to ensure Manilla was of “good character” and deserved to join the profession. In fact, he’d confessed to falsifying the letter just five days before his hearing.Manilla certainly offended the members of his condo board and behaved in unscrupulous ways, but whether this should bar him from the legal profession is harder to say. “Can we have a good lawyer, and a bad person?” says Lorne Sossin, dean of Osgoode Hall Law School at York University. “Is the law society required to govern virtue in its members? It’s a tough question.”(Page 2 of 2)Even so, the law society governs its members’ virtue every day. It isn’t just potential lawyers who are vetted; more than ever, Canada’s law societies are policing conduct among those who’ve already joined the profession, increasingly disciplining their members for not only unethical actions, but also rude or overly aggressive behaviour.Ontario’s law society has led the charge on lawyer civility, spurred in part by a 2008 report for the province’s attorney general, which found that rudeness among lawyers was bogging down large, complex criminal procedures. The LSUC’s own statistics showed it was a problem: last year, complaints about professionalism accounted for 33 per cent of all those received. In 2009 and 2010, Derry Millar, then the law society’s treasurer, travelled around the province to talk with lawyers and paralegals about civility, identifying several causes of the problem, from “behaviours adopted from American television” to stress related to the economic recession.In Ontario, three lawyers faced hearings over misconduct for issues related to civility in December alone, reported the Law Times, a newspaper for the province’s lawyers. On Dec. 17, for example, Julia Ranieri of Toronto had her licence to practise law revoked after being found guilty of verbally abusing a law clerk while working on a real estate deal, among other problems. Ranieri’s record already had a few blemishes on it: in 2009, she was found guilty of professional misconduct after punching a client in the face and breaking her nose, resulting in a 10-month suspension. And Toronto lawyer Ernest Guiste faced a hearing in December stemming from a 2007 mediation session where he told an opposing lawyer to take an opening offer and “shove it up your ass.”Bad behaviour happens in any profession. But among lawyers—for whom aggressiveness or belligerence can be a strategy, even a way of life—it’s a crucial concern. “Sometimes, people litigate against each other over and over again,” says Alice Woolley, associate professor at the University of Calgary’s faculty of law. “Emotions can get the better of them.” It makes civility all the more important to uphold, since overly rude lawyers can undermine the system, says Malcolm Heins, the Ontario law society’s CEO. Civility “underlies lawyers’ responsibility to the administration of justice and the rule of law,” he says.Punching a client in the face is an obvious enough problem, but in rare circumstances, legal regulators can reprimand lawyers for conduct that occurs in their private lives, too, which is more murky—for example, a dispute with a neighbour, “swearing or punching; there have been cases like that,” Heins says. “We have the ability to discipline them for inappropriate conduct if it brings the legal profession into disrepute.”In Ontario, lawyers are now required to take 12 hours of continuing development courses per year, including three hours on professionalism, and a process has been established to make it easier for judges to refer potential misconduct to the LSUC. “We’re getting very good feedback from the courts with respect to the revised process,” Heins says. Other law societies have taken note. The Federation of Law Societies of Canada, which represents each provincial regulator, is encouraging law schools to teach civility alongside professionalism and ethics.The movement has its critics. Woolley, for one, calls law societies’ civility regulations “subjective and, frankly, not very useful.” Sometimes, when advocating for a client, politeness is not a virtue. “Is it not part of my role to forcefully defend my client?” Guiste says. “Sometimes that forceful defence may not be nice to the recipient.” Social norms already prevent most of us from hailing insults upon one another, and the law penalizes physical abuse. Woolley says civility can be a smokescreen of sorts, taking attention away from professional issues that really matter. “There are plenty of things lawyers do that are inappropriate, like using delay as a litigation strategy,” she says. Civility initiatives are “the fashion,” she says, but maybe our regulators’ time could be better spent.Last week, Manilla attended the appeal with his wife, IlanaMasas, and stayed silent while his lawyer, Phil Downes, did the talking. Downes (who declined to comment while the appeal is being decided) noted that the critical issue is whether Manilla is “of good character today.” Even a trained psychologist—or a crystal ball—might have a hard time definitively answering a question like that. But whether Manilla gets the chance to prove his critics right or wrong is ultimately up to the law society.