Litigation

Should lawyers play nice

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As litigation lawyers, Inga and I walk a fine line between being an advocate on behalf of a client and straying into the use of words or actions that would have a label of “incivility” tossed in our direction.

Our law society is always trumpeting the need for lawyers to be civil towards each other and to the judges before whom we appear.

As per The Honourable Judge Dunnigan of the Provincial Court of Alberta: “Civility has to mean more than someone saying ‘excuse me’ before they stab you in the back” [Credit to Eugene Meehan (http://www.supremeadvocacy.ca) for the quote and inspiration for this blog].

But I question if the law society’s never ending demands that lawyers be civil has become an issue of quasi -political correctness. The pendulum has swung to the point where some lawyers dare not say a strong word for fear of the incivility accusation.

There is no doubt that civility is necessary in our functions as advocates. I have had clients in the past question why I am cordial to opposing counsel in the courtroom. The response of course is that the clients pay our firm to represent them, not to step into their shoes.

But fierce advocates for the client’s cause we must remain. We do not hold back in aggressive pursuit of a file simply because we do not want a lawyer or opposing party’s feelings hurt. We respect the judges that we appear before but do not back down from making difficult arguments and debating points of law. If there is a weakness in the arguments or facts presented by an opposing lawyer, we will expose them and take full advantage to forward a client’s cause.

However, we temper this with the consideration that any skirmishes between counsel may at some point be an issue before a judge. So civility remains important, both from practical and professional points of view. But concerns over civility cannot and will not take over our acting as an effective advocate for our clients.

Paul H. Voorn

Social Media in the Workplace – a Balancing Act

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As practicing lawyers and business people, we’re not supposed to weigh in on contentious issues; so this week I’m not going to talk about the Middle East, Mayor Ford, plastic shopping bag bans, the Argos or the Nicki Minaj and Steven Tyler twitter feud. Except that I sort of am.

Part of the Lunch and Learn we held yesterday at the firm dealt with social media in the workplace. It’s an interesting topic from a legal standpoint and one that generated a lot of conversation from clients. One area of confusion however, is the balancing of rights between freedom of expression and the privacy and reputation rights of the employer. How much restraint is reasonable and what kind of social media policy infringes on an employee’s right to free speech?

There are a lot of complexities at play. If the employer has a social media account (like ours) it’s completely reasonable for an employer not to allow an employee (like me) to use the corporate account to vent about their political beliefs or to make insensitive comments about a protected group. That reasonable limit may even extend to the employee’s personal account, depending on the extent to which they represent the company as a “public face.” The Israeli Defense Force is dealing with a bit of a PR disaster this week as pictures of their social media guru wearing blackface and calling himself Obama are being circulated on Facebook. Add that to last week’s circulation of pictures of active duty personnel posing for smiley faces on Instagram while they prepared for a possible ground campaign in the West Bank and you have an organization that probably needs to clarify its social media policy.

Inga’s advice yesterday was helpful I think, and cut through a lot of the competing rights confusion – the policy has to be reasonable and it has to deal with actual harm. If the way someone uses their social media platform of choice isn’t harming the employer in a real way, then the policy shouldn’t be otherwise restricting their behaviour. But where there is the possibility of defamation, leaking confidential information, or devaluing the employer’s brand, a good policy can be the most effective mitigation strategy around.

Scott R. Young.

Information Security

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While there are undoubtedly any number of juicy moral indiscretions to be observed in the Petraeus scandal that has been unfolding over the past few weeks, for me, the informational security issues are the most salacious.

It hasn’t been explicitly detailed, but it appears that the CIA chief’s dalliances came to light when the FBI ran a standard background check on his biographer. That background check turned up inappropriate e-mail correspondence in the drafts folder of a Gmail account that the biographer shared with Petraeus.

That means that without a warrant, and without any hint of a criminal activity, a government agency was able to freely examine the contents of the encrypted online e-mail account of the world’s foremost intelligence official.

Could there be any more stark an example of how weak informational security really is in the world today?

And it’s not just the mighty FBI that seems to reach out and grab whatever pieces of secure information it desires – the Israel/Palestine battles this week were met with another campaign by the hacking group Anonymous, where the group was somehow able to defeat various Israeli secure databases and post the contents online for all to see.

As a law firm, virtually everything that we do is private. All of our communications are privileged and the information that clients impart to us is often the most secret and valuable thing they can imagine. The very idea that this information is vulnerable is chilling.

For that reason, we take a number of steps to ensure that the information is as safe as is reasonably possible. We’re certainly not invulnerable, and we don’t have the resources of the CIA or the FBI, but we do take information security very seriouly. We use encryption, rotating password protection, secure physical plant protocols and whenever possible, 2 (or more) step authentication procedures. We try very hard.

But that’s not enough. Sometimes we actually have to forego technology altogether and go pick up a document. Or have a conversation in person. In private. Sometimes we have to advise clients that (where legal, ethical and appropriate) something shouldn’t have a permanent record.

As a client, who is expert in these matters, recently ranted to me – Balance is important. It is about being logical about competing priorities. If a piece of information is the most important thing in the world, we’re not going to e-mail it. We’re not going to leave it in a folder on our front desk waiting for someone to pick it up. It’s going to be treated very special. We’re going to devote significant time and attention to that piece of information. But we’re not going to give that same level of attention to something much more trivial. It just doesn’t make sense.

The world keeps changing and the pace of technological innovation isn’t going to slow down. But the more things change, the more they stay the same. The way we conduct our business and the advice we give to our clients will always have a strong foundation in common sense and logic.

Scott R. Young

Collections Litigation

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One of the areas where our firm really excels – and it’s an area that I don’t have a lot to do with, so my beaming sense of pride is socially acceptable – is in the area of collections. Whether it be in making sure you get paid for the work you do at the outset, on an ongoing basis, or after some deadbeat has tried to get you to do something for nothing; in all areas we do good things.

This last area is what I’m going to talk about today. Although Inga preaches 30-60-90 Sue™ like a preacher from the old time gospel hour, we often don’t even hear from clients until a debt is well past due and all internal attempts at collection have been met with failure. Any firm worth its salt can take on a matter at this point and set the normal chain of litigation events in motion – but what Inga and Paul and Murray do, is a little bit different, and a little bit special. They actually plan out the course of events that are going to transpire and give clients an honest appraisal about the reality of not only getting a judgment on the debt, but of ultimately collecting on that judgment. Our mantra being that a paper judgment doesn’t benefit anyone – even us – sure you’ve paid our fees, but we’ve given you no value for that and you probably won’t be a client for very long.

Collecting on judgments can be as simple as enforcing a payment plan or as complicated as seeking a court order to go after hidden assets, fraudulently conveyed assets, or playing a shell game of find the assets among a bunch of numbered companies set up to evade creditors.

The last one is particularly challenging, but we’re pretty capable people. For example, in the recent case of Pitney Bowes of Canada Ltd. v. Belmonte, Inga sought an order from the court allowing us to go after a debtor’s other corporations, after proving that they were established solely for the purpose of trying to avoid paying our clients what they owed them under a lease. In that case, the debtor figured that transferring assets to a spouse, and ultimately to newly formed corporations, who were not party to the original debt, would somehow magically defeat his responsibility to pay our client. The debtor was wrong. The case is a particularly excellent example of our founder being out in the trenches, kicking ass and taking names, and setting a great example not only for us, but for other firms who work in collections law.

Scott R. Young

When a Court Decision Spawns Law Suits

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Today I was reading the most recent Ontario Reports – the weekly digest every Ontario lawyer receives that includes some recent decisions of the Courts.

I read with interest the summary of a case involving a lawsuit by a client against an Insurance Company and an employee of the company.

The general state of case law in Canada regarding suing an employee for actions arising out of the course of their employment is that the employer is liable, not the employee. This case does not change that, however, my concern is that some people will read it, believe it does and thereby bring law suits doomed to fail.

Self-represented litigants are the new normal in business litigation and people who do not have law degrees often don’t understand the technical aspects of case law. The case I read this morning, while allowing the client to continue her law suit against the employee and the employer, was not a change in the rule of law I have set out above. Instead, it was addressing a technical “pleading” issue, how the words in the Statement of Claim are framed, and the Judge deciding the matter noted near the end, the decision to allow the matter to be argued was very different than saying it would succeed.

It is not just self-represented litigants who take a case like this and attempt to run with it. In this economy there are many lawyers who find their traditional areas of practice have “dried up” and decide they will dabble in a new area. Some of those lawyers do a good job, some do not. If you’re retaining a lawyer who does not clearly state what area of law they focus on, ask questions to ensure they are the right lawyer for you. You don’t need to pay to educate a lawyer in a new area of law.

Inga B. Andriessen JD

Log Off

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An interesting decision was released last week by the Superior Court of New Jersey, a US state-level appeal court. According to the facts of the case, the defendant had accessed a co-worker’s Yahoo e-mail account from a computer lab terminal, which the plaintiff had inadvertently failed to log out of. The snooping defendant noticed an e-mail thread mentioning them, printed out the e-mail, and confronted the plaintiff with it. Obviously shocked by the invasion of privacy, the plaintiff immediately filed the suit, relying on the provisions of a state wiretapping statute – which apparently allows for both civil and criminal remedies.

It appears that historically, the test under this New Jersey law has been premised on the expectation of privacy held by the person whose communication was “intercepted”. That’s similar to the case law on the issue in Canada. However in the present case, the court was asked to decide whether the defendant knowingly accessed the account without authorization, and if not, what the extent of that authorization was.

Because the plaintiff had accessed their own inbox, and had left the index screen of the inbox up on the terminal when they left, the court found that the defendant did not infringe the law prohibiting access without authorization. The only question left to the court (in this case, a jury) was whether the defendant had exceeded the authorization provided by the plaintiff’s failure to log off. The jury found that the defendant did not exceed the plaintiff’s “tacit authorization” to access the account. On appeal last week, the court upheld the trial court’s decision – the snooping defendant was vindicated.

In Canada, the facts lend themselves not to a civil trial, but to criminal proceedings under the Interception of Communications provision of the Criminal Code. However the statutes are otherwise not all that different and much of the key phraseology is similar enough to think that the New Jersey case law might be relevant.

I don’t agree with the specific questions put to the jury, and the departure from the pure expectation of privacy test is unusual, but it would certainly be interesting to see how a Canadian case on similar facts would be interpreted.

Until we have such caselaw, the takeaway from all this is to protect your data and your communications as much as possible – any failure to do so, even accidentally, could be viewed as tacit authorization to snoopers and other evildoers.

Scott R. Young

Policies and Procedures

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Every once in a while we are lucky enough to get to work on the holy grail of a client’s operations – the policies and procedures manual. Sometimes it’s after our business compliance audit turns up some unexpected sources of liability, sometimes it’s after some triggering event has highlighted the need to put things on paper, and sometimes it’s a proactive first step in putting together a company right from the ground up.

The P&P manual is a great place to tie employees into the workplace by giving them a comprehensive document that outlines all of the rights and responsibilities associated with their job. It includes government mandated policies that address privacy, harassment, violence, accessibility standards and many more. It also sets out the specifics of the discipline policy so there are no ambiguities (and far fewer lawsuits) in the event of discipline or termination.

I probably get a lot more excited about putting these together than Inga or Paul or Murray do – but they often have a lot of input into them. Either they have knowledge of the client’s operations that help customize a policy that works in their workplace, or they have court experience on a particular issue that goes directly into how the policies and procedures are written.

If you are putting together a business from the ground up or are ready for a spring cleaning to make sure that your workplace is compliant from the top to the bottom, please have competent legal counsel draft some policies that work for your business, or review your current policies to ensure that they reflect the hundreds of legislative changes that have occurred in the last decade.

Scott R. Young

ILA

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Amidst all the Facebook IPO hype this week, there was the release of an e-mail from Mark Zuckerberg to his corporate lawyer, instructing them to dilute Facebook co-founder Eduardo Saverin’s share in the burgeoning company.

Aside from the obvious professional responsibility issue that this presents for the lawyer (assuming the lawyer was acting for the corporation, they had an immediate duty to declare a conflict of interest and cease all representation of the company), the story highlights the need to get good independent legal advice before entering into any legal agreement. I had a great example of the right way to do things last week – we were retained to give ILA to a shareholder on a Shareholder’s Agreement that they had largely formulated. Despite the fact that this shareholder had been the principal instructor to the corporation’s lawyer, and was intimately familiar with most of the terms of the agreement, the corporation’s lawyer still thought it would benefit all of the shareholders to get ILA – not just to waive it as is sometimes (unfortunately) done.

The shareholder was convinced that ILA would add value even if only to have a fresh set of eyes review the agreement. In our review, we offered more than that; considering various critical events from the shareholder’s individual perspective was very different than the perspective of corporate representative they had while preparing the agreement.

The details of the Facebook dilution are not entirely clear (the ensuing litigation was settled and not much is on the public record) but presumably the restructuring that diluted Savarin down to 10% was ultimately effected, and presumably without Savarin retaining counsel to explain this to him. And when he did realize the dilution, litigation was the only option available.

Getting independent legal advice is not cheap, but the value in what you are getting is often immeasurable. If you are entering into an agreement of any significance (including potential future liabilities), you absolutely must have legal counsel review the agreement and confirm that your interests are protected (or that your unprotected interests are known to you). It’s that simple.

Scott R. Young

Ontario Court of Appeal Privacy Ruling

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Almost a decade and a half after invasion of privacy was touted to be the tort of the 21st century, and after almost a century and a half of debate, Ontario got its first civil award for damages in a privacy breach this week.

Calling it “intrusion upon seclusion”, the Ontario Court of Appeals awarded the plaintiff $10,000 in Jones v. Tsige, for the defendant’s repeated, unauthorized snooping into the plaintiff’s banking records (the two were employees of the same bank).

The legal test was enumerated as follows:

“One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.”

Of particular interest in the case, is that the court explicitly noted that the right of individuals to this civil remedy lies in addition to statutory remedies available under PIPEDA and similar privacy legislation. While this ruling will have a considerable effect on privacy law in Ontario, the court does not feel that it will “open up the floodgates.” The court noted that the facts of the case limited the availability of the tort:

“The key features of this cause of action are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.”

The court further limited the scope of what constitutes the kind of privacy breach that could give rise to an action:

“…it is only intrusions into matters such as one’s financial or health records, sexual practices and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.”

But perhaps the most sobering aspect of the judgment is the award. Saying that it could only award moral damages, the court decided on $10,000 for the plaintiff’s humiliation and suffering. Some analysts have suggested that this could be seen as a modest fee by those who are intent on breaching privacy for nefarious reasons.

What is unclear is the effect this will have on our clients – business owners. It is certain that the obligation to protect the privacy of customers and employers is as strong as ever, but it is important to note that in the present case, the court noted that the defendant’s actions were that if a rogue employee who had violated the employer’s code of conduct, and thus no action was available (presumably under PIPEDA) to the plaintiff.

We will be watching further developments in this area with great interest – particularly to see if this case is appealed to the Supreme Court.

Scott R. Young

New Years Resolutions for Business

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Tomorrow is New Year’s Eve – time to promise to workout more, eat less & be kinder to everyone (except the Kardashians, well, maybe even them).

As many people find personal resolutions hard to keep, I’m happy to propose a few business resolutions which should be easier to keep and therefore give you smug satisfaction next year at this time when you look back on the year.

So, without the snappy banter of Dick Clark’s Rockin’ New Years Eve, here are some suggested resolutions:

1. Have your lawyer prepare your annual business minutes and esnure your minute book is up to date.

2. Prepare both a personal and business will.

3. Register a Trademark if it has value to you.

4. If you are in Construction, lien projects within 45 days of last service or supply.

5. Follow 30-60-90 Sue to ensure your receivables do not cripple your cash flow.

Wishing you a Happy & Profitable 2012 !

Inga B. Andriessen J.D.