This week has been set aside by the greeting card companies to celebrate Admin Professionals day. We will be joining in, however, in our firm we appreciate our Admin Professionals every day.
Since starting this firm over 23 years ago, I have always been of the belief that we all work together, in different, but equally important roles in our firm. As the lawyer my role is specialized and I’ve gone to school longer than others in the firm, however, without our Law Clerk or Legal Assistant, our clients would not get the excellent service we want them to have.
By recognizing that people work “with” me and not “for” me, I believe I have set the tone in our firm that we value everyone’s work. I encourage everyone who has fantastic Admin support to recognize those people, not just this week, but everyday for their contribution to making your business productive.
If you’re reading this Blog and not sure what “The Panama Papers” are, please do a quick Google Search and then return to this Blog. I’ll wait.
O.K. Everyone on the same page then? Good.
I’m bothered by The Panama Papers, for reasons other than the outrage people have about the Tax Avoidance (which is legal) that has been brought to light. I’m bothered by the fact that these are files that were presumably stolen from the Panamanian law firm. Why does mainstream media think it is o.k. to publish stolen documents?
While some people seem absolutely fine with this because it is “fat cats” who are the targets of these leaks, I wonder how good those same people would feel if the details of their discussions with their divorce lawyers were splashed all over the world’s papers?
Lawyer/client confidentiality is a very important part of the lawyer/client relationship. It allows the client to be completely honest with their lawyer so that the correct legal advice can be provided. When clients start to tell their lawyers only part of the story, the lawyer cannot do the job they are being retained to do.
In this digital age, clients need to ask their lawyers: how are you protecting my confidentiality? Who has access to my physical files? Who has access to my electronic files?
Our firm has always ensured our backups are backed up to computers physically located in Canada. This avoids the scrutiny of the USA Patriot’s Act, which otherwise can go through your lawyer’s data which is stored in the USA. Does your lawyer use DropBox for your files? That is based in the USA? Does your lawyer use a Cloud Based Accounting System? That is probably based in the USA.
It’s time for lawyers to understand their technology so they can protect their clients’ confidentiality and it’s time for clients to ask questions about how their data is stored.
Lawyer/client confidentiality matters, particularly in the digital age.
Our law firm is frequently in the Milton, Ontario Court House. Milton needs a new Court House.
There is one elevator in the Court House that goes to the third floor. It is out of service more often than it works. This prevents people with mobility issues from easily getting to the Court Rooms on the third floor. This is wrong.
There are no private rooms for lawyers to meet with their clients. This means lawyers often have to have confidential meetings, in the open, within earshot of other people. This is wrong.
There are not enough cells to accommodate the prisoners in the cells. This is wrong.
Why is the Ministry of Attorney General letting this continue? Is it because the Halton Region is perceived as wealthy?
Is it because the Halton Region is not protesting?
Do we need to wait until there is an incident in the Milton Court House that raises public awareness of the state of the facility?
Last week, the Ontario Human Rights Commission (ONHRC) conducted a trial by twitter. A restaurant had allegedly posted, on twitter, an ad for a female restaurant worker. To be clear: one is not allowed to do that in Ontario and job ads must be gender neutral.
The ONHRC in its’ twitter feed named the restaurant in a tweet stating that the ad was not allowed. When I saw this tweet, I took issue with the lack of due process and tweeted about it both to the ONHRC and the Commissioner of the ONHRC. The Commissioner’s response to me was that their job is to educate and the post was not “shocking” as I had described it.
I attempted to make my point back, but 140 characters is not a lot for anyone, let alone a lawyer, to express a cohesive thought, so this week’s Blog is my position on the ONHRC’s Tweet and why I take issue with it.
Anyone can set up a twitter account. There is no mandatory verification process to ensure that a twitter account on behalf of a business is actually run by the business. A competitor could set up a twitter account or a disgruntled employee could set up an account.
As such, when the ONHRC decided to “out” the restaurant on twitter, what it did was give bad press to a restaurant without confirming that the actual restaurant had violated the Ontario Human Rights Code. This likely didn’t have a massive impact on the restaurant’s business, but that is irrelevant: it could have.
This is why we have an actual human right’s complaint process before the Ontario Human Rights Tribunal: spoiler alert, it doesn’t involve trial by Twitter.
While the Role of the ONHRC includes educating the public about Human Rights, it does not include presuming that a tweet is from the organization it claims to be from and then attacking that organization on twitter.
Many of our clients are entering “Deal Mode” these days which often leads to questions about the value and enforceability of documents prepared in anticipation of doing a deal. These questions are often about the binding nature of a letter of intent or, in more information situations, the effect a handwritten list of deal items would have on the sale of a business.
The letter of intent, sometimes called a memorandum of understanding, is usually created by a lawyer or accountant who has considered most of the important elements of the deal. The list of deal items, on the other hand, is usually the result of a casual brainstorming session between two business people who were trying to negotiate a deal that would make them both happy. The two documents look vastly different and seem worlds apart; but the truth is, they’re not that different.
In the lead-up to a major transaction, letters of intent are often used to clarify the major points of a deal such as purchase price, deliverables, timing and any restrictive covenants that might be required by either side. They’re often used liberally because the parties feel like they’re not binding, or not as binding as the final agreement. The truth is that letters of intent can sometimes be as binding as a formally executed agreement – it will all depend on the wording of the document and how well it evidences the intentions of the parties to be bound. A letter of intent that is clearly exploratory will have a different effect than a clearly binding letter.
The list of deal items is little different. A wish list of clauses, drafted by one side, is going to be treated differently than a list of items that actually evidence points agreed to by both parties – particularly if either party is then obligated to undertake any further actions, such as financial disclosure.
In both cases, pre-papering the negotiation of a deal can be incredibly helpful in making the best deal possible, in lowering legal costs, and in keeping a record of the evolution of the deal. But at the same time it’s important to know that the documents, as well as the conversations about the deal, particularly including any letters or e-mail about the terms, may have a legally binding effect. The best practice is to retain counsel when the deal is contemplated and talk to them about what sorts of documents need to be prepared and when. Setting the terms out on paper will reduce the amount of negotiation on the final agreement and should help reduce unexpected surprises.
So you’ve gone to all the time and expense of developing a brand, establishing goodwill in the marketplace and even registering your trademark – now what?
Here are a few key things to think about so you don’t lose the right to your Registered TM:
1. A mark only has rights so long as it is used in conjunction with the goods or services that its registration is associated with. If you stop using the mark, a competitor can have your mark expunged from registration; this includes not using the mark in conjunction with the goods and services that its registration is associated with, but still using it in association with other goods and services.
2. If you do expand the scope of usage to include goods and services not in the original registration, you’ll need to apply to have those categories added. Failure to do so may weaken your rights in the trademark.
3. Make sure no one else is using your mark. Trademark rights diminish if they become generic. If others use your trademark improperly, or as a generic term to describe certain goods and services, you could lose you trademark rights. This means you’ll need to keep an eye on your competitors, wherever they may be. Regular searches are key.
4. Renew your registration. Remember that trade-mark registration is a limited right, lasting for 15 years. After that, you’ll need to renew the mark’s registration every 15 years or your rights to it disappear.
Many businesses invest thousand of dollars into their brands and more to register the Trademarks: don’t waste that money by not using that Trademark.
Last week I attended a fantastic International Women’s Day (IWD) dinner in Halton, Ontario. There were over 900 attendees, most were women, but some men attended the event as well.
I was at a table of all women. Four of us, including myself, own law firms. Four were employed by the lawyers. One was a self-employed business woman and one was a semi-retired business woman. Our ages ranged from early 30s to early 60s. As I looked around at the other tables, I saw other women I recognized: Superior Court Judges, teachers and more lawyers than you could shake a stick at. What an accomplished group of women. More importantly, what a large group of accomplished women.
The main speaker was Sally Armstrong – a journalist who has covered women’s rights around the world. Ms. Armstrong believes that things are improving for women globally due to the personal will of individual women around the world to take control of their situation.
As is often the case at IWD events, there were a few introductory speakers who mentioned how difficult the plight of women is in Canada.
Sitting in that room at the table of lawyers, many of us who were the first in our family to be lawyers and most of us were not from privileged backgrounds, I could not help but think that claiming it’s hard to be a woman in Canada is detracting from women who truly have difficulty achieving equality throughout the world.
Ms. Armstrong gave numerous examples of women in developing countries who do not have the same access to opportunities that we do in Canada, yet those women do not see that as an obstacle to achieving their success: they have the personal will to attain their goals.
Women in Canada have the opportunity to achieve the goals they set for themselves: they need the personal will to attain those goals. No one can do the hard work for someone else: if you don’t want something, you will not achieve it.
Of course, it’s hard to be motivated to reach for a goal when accomplishments are being undermined by those who say we are equal because it’s 2016, rather than because we have worked hard and are just as educated and capable as men. Everyone needs to work hard to attain a goal in order to be successful: if something is simply handed to you, you become complacent and don’t strive to be more.
It’s 2016. Women in Canada have the same opportunities as men and many of us seize those opportunities and are successful. However, if you are not willing to work hard, you shouldn’t expect the same results – you don’t get to succeed just because you are a woman in 2016.
In Ontario, if you lose in a civil lawsuit, you generally have to pay the legal fees of the winner. The rationale behind this is, in part, it prevents lawsuits that are not likely to succeed from being brought.
From a business perspective, focusing on Wrongful Dismissal Lawsuits, this is a good thing. Employees need to decide if they truly have a case that is likely to succeed.
Currently, if an employee makes a complaint to the Ontario Human Rights Tribunal and loses there are no cost consequences. This leads to many complaints against employers, which require employers to obtain and pay for counsel and creates an imbalance in the system.
Thankfully, there is currently a Private Members Bill winding its’ way through the Ontario Legislature that will correct this imbalance and allow costs to be awarded by the Tribunal.
To be clear: this should not stop valid complaints regarding discrimination and harassment from being advanced, however, it will stop the use of the Tribunal for claims that, in legal words “do not have the ring of truth” about them.
The news recently has been blanketed with accounts of the Immigration and CRA frauds making the rounds in the GTA. In these frauds, people phone individuals and advise that they will deported or they are going to jail in the hour because they have not paid taxes. Many vulnerable people have paid money to these criminals out of fear.
People are not the only ones at risk, businesses can fall prey to scams as well.
I’ve been in business over 23 years, so I’ve seen a few scams before the internet really took off. Of course, as someone carrying on business in the 1990s, I received my share of the Nigerian Mail Fraud invitations. Letters (real letters, not emails) were sent to owners of businesses asking for their help in exchange for huge sums of money. I recall at the time wondering how people could fall victim to this, then I met someone who said his business had been in a downward spiral, he was religious, had just returned from Church and felt this was his miracle. The business closed.
One of the scams I really enjoyed was when toner and a bottle of wine was sent to our firm (never ordered either). The toner came with an invoice, the wine was described as a gift. My Mom always said it’s not nice to refuse gifts, so I returned the toner to sender and kept the gift.
The non-approved invoice scam continues in various forms today. Midsized companies are most vulnerable to this if they do not have strict approval processes. Often, an invoice can end up in the system and paid, though the service was never ordered.
Lawyers are currently the target of particularly sophisticated scams. Emails from foreign companies seeking collection help are actually an attempt to have a fake “certified” cheque deposited into a lawyer’s trust account and then taking out immediately, leaving the Lawyer holding the bag.
Ultimately, the old adage, “if it seems to good to be true, it probably is” is the best way to carry on business. That and have tight procedures that are followed before paying invoices.
Many of our clients retain our lawyers to draft contracts that they use on a daily basis in their business. We draft contracts for many industries ranging from commercial landlords to leasing companies to software developers and many others.
One of the key pieces of advice we give our clients when we give them the final version is do not “strike out” terms of the contract without consulting our firm. It can be very tempting for a client, when negotiating with a potential customer to agree to strike out one line in a contract we have prepared. However, many times that specific line has implications throughout the contract and by striking it out, you’ve lost the very advantage you hired our firm to create.
We always remind our clients it is far less expensive for us to prepare documentation, compared to the dollars spent on litigation. Don’t find yourself in litigation because you struck out a clause that now requires a Judge to interpret the overall contract. You’ll be kicking yourself if you do.
Inga B. Andriessen JD
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