BarTalk June 2021 | Practice Management by The Canadian Bar Association, BC Branch

JUNE 2021 | bartalkonline.org

Practice Management HOURLY BILLING | PRO BONO WORK | MANAGING CHANGE | UNBUNDLED LAW

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C A N A D A ’ S

L E G A L

R E C R U I T M E N T

F I R MTM

Practice Management Features 4 5

JUNE 2021 Volume 33 | Number 3

Columns

Fundamentals of Labour Arbitration Practice

Randy Noonan

Practice Management Amid COVID-19

Unbundled Law in a Gig Economy

Jennifer J.L. Brun

Sonali Sharma

Executive Director

Moving Away from Hourly Billing

Practice Management

From the President

Digby Leigh

Kerry L. Simmons, QC

Managing Change in a No-Fault Environment

Practice Talk

Kenneth Armstrong, QC

Aspects of Practice Management

In-House Legal Practice Management

David J. Bilinsky

David Avren

Guest Columnist

Sometimes It’s Not So Obvious

Stripped

Janna Crown

Karlan S. Modeste

Unconventional Law Firm Design in a Virtual World

Nothing Official

No shirt. No shoes. No shot. No service?

Doug Jasinski

Tony Wilson, QC

Greg Palm

12 14 15

Don’t Shoot Yourself in the Foot (or the Wallet)

Tips and Considerations for Managing Pro Bono Work

Tom Spraggs

Representing Clients with Capacity Issues Krista James and Kevin Love

Mark Meredith

Why Deal Mediation?

A Tool Every Lawyer Has, Few Know How to Use Well

Chilwin Cheng

From the Branch

MAKE TIME FOR BARTALK Shape the future of your magazine. Fill out our survey for a chance to win an Apple Watch!

cbabc.org/bartalk21

Brandon D. Hastings, Committee Chair

Advocacy in Action

Editorial Committee Tonie Beharrell Baljinder Girn

SectionTalk

Deborah Carfrae, BarTalk Editor

Professional Development

Staff Contributors Alyssa Brownsmith Michaela David

From the Community 19

BCLI/CCEL Update

National Magazine

Tips from Courthouse Libraries BC

CLEBC Update

The Law Foundation of BC

BarMoves

Eryn Jackson Isabel Jackson

Travis Dudfield Eileen Huster

Greg Palm Lisa Picotte-Li

Crystal Tomusiak Sean Vanderfluit

Carolyn Lefebvre Sanjit Purewal

Jo-Anne Stark Alexandra Suchy

BarTalk is produced on the traditional and unceded territories of the Coast Salish peoples, including the Musqueam, Squamish and Tsleil-Waututh Nations. BarTalk is published six times per year by the Canadian Bar Association, BC Branch (“CBABC”) and is available at cbabc.org/bartalk. This publication is intended for information purposes only and is not legal advice. CBABC supports more than 7,200 members in British Columbia. We connect our members to the people, knowledge, and skills they need to successfully practice. BarTalk enquiries, suggestions, and letters to the editor: Canadian Bar Association, BC Branch 10th Floor, 845 Cambie Street Vancouver, BC V6B 5T3 Membership Enquiries membership@cbabc.org

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FROM THE PRESIDENT JENNIFER J.L. BRUN

Practice Management Amid COVID-19 Stay connected!

very practising lawyer must complete 12 hours of accredited Continuing Professional Development within a given year. At least two of those hours must pertain to any combination of professional responsibility, ethics, and practice management. When we think of practice management, various facets of our work come to mind: form of practice; financing; office space and equipment; Internet presence; delineation of roles and division of duties; legal information resources; filing, timekeeping, and accounting systems; client relations; and insurance coverages, to name a few. Managing one’s legal practice effectively is a component of competence, as set out in our Code of Professional Conduct at R. 3.1-1(i). Interestingly, however, law school does not teach us how to be effective managers — or managers at all, for that matter. Our current Professional Legal Training Course in British Columbia includes a chapter entitled, “Professionalism: Practice Management.” Further, completion of our Law Society’s Practice Management Course is mandatory for lawyers practising in a small firm setting (not more than four lawyers) and, since 2018, for all articled students. But what about those of us who do not practice in small firms and who articled prior to 2018? The majority of lawyers in British Columbia arguably have no formal management training and many of us are managing the business operations of our firms. Enter COVID-19. How many of us had a pandemic preparedness plan at our disposal? COVID-19 added yet 2 BARTALK / JUNE 2021

another layer to the complicated, practice management matrix. Novel challenges for lawyers and law firms, with the paramount goal being staff and client safety, warranted increased flexibility in the delivery of legal services. Entrenched legal and court procedure suddenly became nimble and seemingly ever changing. Lawyers and legal professionals who previously had resisted technological advancements and flexible work arrangements, were forced to rapidly adapt their practices while remaining abreast of the evolving legal landscape or be faced with irrelevance. The pandemic response has touched nearly every aspect of practice management, including a conversion to remote work practices. Working remotely has pros and cons on both personal and professional levels. Personally, for some, the lack of a daily commute means more time to spend with family, and the ability to make healthier lifestyle choices, including exercising and cooking more. For others, the isolation of working remotely is devastating, or the inability to separate work and family life means working through the middle of the night as young children sleep. Professionally, remote operations have the potential to decrease office overhead and increase efficiencies, and the resultant opportunity to pass these costssavings along to clients increasing access to legal services. Conversely, virtual hearings are inherently less formal and more prone to interruptions and miscommunications than

their in-person counterparts are, and remote practices expose us to increased phishing attempts and client confidentiality risks. Further, important emotional interactions and mentorship opportunities are lost in remote work environments unless we make deliberate efforts to ensure they continue. As you work tirelessly to transition the delivery of legal services and keep abreast of the evolving legal landscape, reflect upon the following practice management considerations: Lead

with empathy — it has been a long road and the end seems at times to be an elusive mirage; Stay

connected with your staff through regular virtual events to convey important information, celebrate achievements, keep your finger on the pulse of wellbeing, and raise camaraderie and morale; and

Regularly

review the CBABC COVID-19 Resource Hub for legal industry updates, business support resources, wellness resources, advocacy updates, and practice management resources.

And, of course, check in with your professional association — the CBA — to stay connected and apprised of practice management risks and opportunities. We are here for you!

Jennifer J.L. Brun

president@cbabc.org

EXECUTIVE DIRECTOR KERRY L. SIMMONS, QC

Practice Management Client-centred perspectives

his edition of BarTalk features practice management, a foundation of a lawyer’s work. Most of what we do for practice management focusses on three goals: (1) an efficient operation capable of realizing profits or other business goals, (2) meeting Law Society requirements to protect the public, and (3) minimizing our risk of loss, aka “defence-proofing” our practice. Each of these goals are met through a myriad of strategies, systems, and technologies. There is no doubt that this core of practice management is necessary and important. But what about exploring some of these issues through the lens of the client’s experience? What does the client see or hear when a lawyer states a requirement? Is a client more confident in the advice or the lawyer’s reliability? Does the client even understand what has been said? Is the way lawyers execute their practice what clients need? One of the obvious areas to explore is client communication, both in content and presentation. The use of language is critical to our work. Is the language we use appropriate to our client’s comprehension? As well-educated individuals, adept at reading and comprehending massive amounts of written communication, what we understand and how we communicate with each other may not be appropriate to assist our clients. Perhaps there is a simplified way to explain some of our practice requirements. Maybe we could use less jargon or words that

have become familiar to us, but have different meaning for our clients. For example, “retainer” and “conflict check,” are not words familiar to most people. Perhaps “deposit” or “available to help you” might be terms we could substitute. As Microsoft explores its new default font and the provincial government introduces the Accessibility BC Act, you might want to consider what font, and what font size, you use in presenting client communications. Accessibility advisories indicate that “sans-serif” fonts, also known as fonts without decorations, are easier to read. Always using 12-point font, rather than shrinking the font size to fit a letter on one page, will also make it easier for clients to read and comprehend. Several firms are changing the language they use to explain and promote their services to appeal to their target clients. These changes are evident in websites, initial contacts, and then throughout the lawyer-client relationship. This strategy reflects a client-centred approach. Does the client want to hear about an “area of practice” or “how we can help you.” Do they want to hear about “dispute resolution processes” or “solving your problem”? When you or your admin assistant speaks with the client, is it about your schedule and how you are busy or don’t have time until later, or is it about finding a time to focus on the client.

Some say these changes are just “marketing-speak,” but what we say and how we say it makes a difference to our experience. Think of the last time you had an unpleasant experience with a service. What was happening? How did you feel? Could your interaction have been better if different words were used, an improved tone, an easier communication to read or understand, or more realistic timing. One of your best partners in reviewing practice management systems is your administrative assistant or paralegal. They often have insight to client reactions, questions and feedback and can help shape changes. Another excellent source is your clients. Asking them how you can improve their experience with you and the legal team can give you ideas and solutions that may also make your own experience with them much better. Understanding the user perspective is important in all decision-making, including the production and design of this magazine. This June, we want your input to make BarTalk better. Access our survey at cbabc.org/bartalk21 and tell us what you think. We want to make your experience relevant and meaningful to you.

Kerry L. Simmons, QC

ksimmons@cbabc.org JUNE 2021 / BARTALK 3

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RANDY NOONAN

Fundamentals of Labour Arbitration Practice

Similarities to and differences from court

reparing for labour arbitrations is similar to preparing for court trials. However, there are significant differences. Here are some things to keep in mind.

mindful of that relationship and avoid tactics that could unduly damage it.

JURISDICTION

EVIDENCE

Lawyers are often approached by potential clients who want to litigate a dismissal or other workplace issue with, “I want to sue the employer and maybe the union as well.” It’s key to understand that the courts do not generally have jurisdiction to determine labour disputes, including dismissals, that arise when an employee is covered by a collective agreement. The vast majority of such cases are dealt with through the grievance and arbitration process.

Arbitrators have the authority to accept or reject evidence that might be admissible in court proceedings. That does not mean, however, that rules of evidence go out the window. For example, arbitrators are unlikely to determine any major issue on the basis of hearsay evidence. Make sure you present evidence properly and have witnesses identify and verify documentary evidence you want entered.

ARBITRATION VS. COURT Unlike judges, arbitrators are normally selected by the parties to the dispute: the employer and the union. The individual “Grievor,” is not a separate party. The Grievor’s interests are advanced by the union which has the right to proceed, withdraw, or settle the case as long as it represents the Grievor fairly. The union, not the Grievor, appoints and instructs counsel. Perhaps the biggest difference between labour arbitrations and typical court proceedings is the ongoing relationship between the employer and the union. The parties must continue to coexist after the case is over. In conducting a case for either party, counsel should always be 4 BARTALK / JUNE 2021

In arbitrations, each side pays its own costs and shares the cost of the arbitration itself.

Arbitrations do not have the same pre-hearing mechanisms for discovery that precede trials. However, Case Management Conferences are now mandatory in most cases. During those conferences, the arbitrator may direct the parties to exchange particulars and documents. Be cooperative and thorough in providing particulars to the other party and advise your client to cooperate. There are real risks if you do not, including that evidence may not be admitted or an adjournment may be required.

the issues are. Delving into factual minutiae does little good at this stage. Arbitrators will usually discuss the possibility of resolving the case through mediation. Give advance thought to how the case might be settled and how the arbitrator may assist you in reaching resolution. During the hearing, be respectful toward the arbitrator, counsel, and witnesses. Belligerence may impress your client but will not advance your case. Try to have a clear cross-examination strategy that is not centred on humiliating the witness. Avoid petty objections and don’t overstate your case. Do not argue with procedural rulings after they are made. When you crossexamine, remember to suggest any anticipated contradictory evidence to allow the witness to justify the contradiction. The closing argument is your chance not only to bring forth jurisprudence, but to go back to the facts and issues of the case, and tie those elements together. Choose a small number of “themes” and emphasize those. Your duty as counsel extends not just to your client, but to the process itself. If, for example, you refer cases to arbitration that you know will be withdrawn, you may deprive someone else the opportunity of having a speedy hearing. Arbitrations are, at the same time, less formal and as formal as court proceedings. The trappings are less formal but preparing your case as if you were going to court will serve you well.

CONDUCTING THE CASE Use your opening to tell the arbitrator what the case is about and what

Randy Noonan is a BC-based arbitrator/ mediator doing cases provincially, under the Canada labour code, and in Yukon.

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SONALI SHARMA

Unbundled Law in a Gig Economy Doing law differently

orking from home. Court appearances via Microsoft Teams. Offering remote services over zoom to someone in the Kootenays from your couch. Did you ever think this was possible in law? Neither did your colleagues. In this pandemic-era, many lawyers and legal service providers have had to find new ways of practising law. Technological innovation has enabled professionals to think outside the full-service model of law. This type of practice is often referred to as unbundled or limited retainer law. A lawyer provides a client with legal services for part of their legal matter and allows for the lawyer and client to work collectively in deciding what tasks the lawyer will perform and what tasks the client will perform. It has become increasingly popular with self-represented litigants and for folks who are unable to afford full representation. Similarly, gig workers (bit.ly/bt0621p18-2) are independent contractors who enter into short-term contracts with firms or individuals to complete specific and often one-off tasks. How does one thrive in a legal “gig” or unbundled legal practice? KNOW YOUR CLIENT (AND THEIR EXPECTATIONS)

Not all clients are suitable for unbundling. It’s vital to understand the client’s legal issue, their needs, expectations for services being provided

and what termination of services looks like. All of this should be captured in the initial intake meeting. KNOW YOURSELF

Are you capable of letting go? Are you okay with or sharing control of a legal matter with your client? Are you able to effectively communicate boundaries? A lot of unbundling is built on trust and communication. While the Law Society of BC provides a policy framework and rules around limited representation (bit.ly/ bt0621p18-1), it is ultimately your professional and personal responsibility to know whether this is the right type of practice for you. INVEST IN TECHNOLOGY

Investing in legal software (preferably cloud-based) that supports streamlining client communication and helps organize your practice goes

Technological innovation has enabled professionals to think outside the fullservice model of law. a long way. With tools like online intake forms, integrations with online scheduling and the ability to manage documents collaboratively with clients will increase efficiency and flexibility, and provide transparency and reduction in legal fees for the client.

THINK LIKE A TEACHER

A huge chunk of providing unbundled legal services to clients is acting as a conduit to knowledge sharing/ transfer to clients. Clients are smart. They know their story. What they need from lawyers is not just advice, but access to information. Connecting clients with useful and accurate legal resources goes a long way, particularly those available online. ABUNDANCE MINDSET

Similar to the gig worker, unbundled legal practitioners may struggle with financial scarcity at the outset. Ask yourself what is the impetus for providing unbundled legal services? Is it Free Agency? Flexibility? Necessity? Sometimes we do things because we feel we need to. Investing time and intentional energy in connection with other professionals (not just lawyers) who have non-traditional models of practice will help you see if this is a right fit for you. Be curious. Along the way you will also realize that your fear of scarcity is shared, but remember risk often leads to reward. CLIENT FEEDBACK

It’s important to ask the client about their experience. The more feedback you receive, the greater insight you will have into the efficacy of unbundling your legal practice and ultimately you! Sonali Sharma is the founder of Athena Law. She is the Co-Chair of the CBA’s Unbundled Legal Services Subsection. Twitter: @athenalaw604. JUNE 2021 / BARTALK 5

practicetalk DAVID J. BILINSKY

Aspects of Practice Management Making it all work

r (Making it work) takes a little longer (Making it work) takes a little time... r

— Music and lyrics by Doug Bennett, recorded by Doug and the Slugs.

hat does it mean for a practice to be run efficiently, ethically, and effectively? Practice Management is not just running a law practice to make money; it has legal, ethical, and professional obligations that break down into four categories: Management, Marketing, Technology, and Finance. Let’s explore each in turn: MANAGEMENT: Do

you use a client intake form that collects and records all essential conflicts and limitations periods checks?

you maintain a master calendar (and backup) of all limitation periods?

Are

all important dates (court appearances, meetings, deadlines) incorporated into the master calendar system and reviewed daily?

you ask how the client wishes to communicate and provide instructions?

you ask and record what is the client’s acceptable engagement outcome?

you introduce your staff and establish how and when they will contact the client and how the client is to contact them?

6 BARTALK / JUNE 2021

you provide limited scope representation, have you clearly set out the scope of your service(s) in writing?

you ensure that no papers, files or computers are visible to nonfirm members in the office?

Does

a firm employee escort all non-firm members inside the firm?

you have a policy regarding the review of anyone’s workload in the event of an illness, sickness, or injury?

you have policies and systems in place ensuring the timely completion of all work within timelines and expectations? Do

you have a policy in place that requires all staff to take a health break at least X minutes a day?

you have a firm policy when emails and telephone calls shall be returned? all communications reduced to writing (or electronic record) in the client’s file?

you encourage all staff and lawyers to establish a career plan?

Are

you have a system that prompts all lawyers in the firm to review and sign off every file every X days?

you have a file closing, retention, stripping, and disposal policy? Do you inform the client how long you retain files after a file is closed?

you have an office policy and procedures manual that is reviewed and updated annually?

you have an annual performance review of all staff?

you have a policy regarding the handling of rude, disrespectful, discriminatory or harassing clients, staff or others?

you delegate and provide positive and constructive feedback?

MARKETING: Does

your firm have a social media presence?

you have a policy that outlines the proper use of social media establishing acceptable firm posting guidelines?

you review the current ethics regarding proper legal marketing?

you have appropriate disclaimers on all marketing materials, web pages, blogs, and published articles?

you have a marketing budget (time and $) ensuring that lawyers are undertaking regular marketing efforts?

you have a clear and consistent branding statement?

you review your marketing plan annually?

you have a policy requiring all lawyers to contact clients every X days?

you review client bills to ensure that they clearly set forth the results you have achieved before a bill is finalized?

the end of a matter, do you ask the client for an evaluation?

you ask for referrals?

all staff regularly attend relevant CLE seminars?

TECHNOLOGY: Have

you established acceptable use policies for all firm IT systems as well as confidentiality agreements regarding all firm and client information? Has each employee read and signed these?

Have

you established a time lock system when someone does not use their computer system?

you require secure passwords or have you set up other methods (i.e., security key) to prevent unauthorized entry into your systems?

Have

you a zero-knowledge (fully encrypted, end-to-end, where only you have the decryption key) cloud-based, off-site backup system that is ransomware and malware hardened such as sync.com?

Have

you considered moving to a firm portal to avoid using email for sensitive communications?

you have a standardized document management system for all documents?

lawyers and staff work from clean desktops (i.e., no file piles)?

you have an IT and firm disaster and recovery plan?

you have software and systems in place to allow lawyers to work from home confidentially (i.e., a VPN — virtual private network)?

you have appropriate policies and procedures in place to protect the firm IT systems from computer viruses, malware, ransomware, spam, and phishing attacks?

you regularly update all computer operating systems, anti-virus and malware protection software and systems?

you capture all communications and record them into the client file (emails, texts, phone conversations, letters…)?

FINANCE: At

the initial meeting, do you discuss your fee and billing arrangements?

you use both “engagement” as well as a “no engagement” letters and ensure that one or the other is sent after each initial meeting?

you ensure that your client(s) sign a written fee agreement and when possible, lodge a trust retainer?

Have

you ensured that all client funds are handled in accordance with all rules on the ethical treatment of trust funds? you ensured that all funds handled by the firm are governed by policies and systems that prevent fraud and/or misappropriation?

you have a firm budget that tracks all firm income and expenses against projections?

you handle cash, do you have proper policies and procedures in place?

you have a system that regularly notifies partners of all important firm financial metrics in a timely fashion?

you have systems in place that record billable time (even if the lawyer is not billing by time) to determine the effectiveness of all timekeepers?

Are

all draft bills reviewed by the firm billing committee prior to be rendered?

you use an integrated time keeping, billing, accounting, and client management system?

Are

all bank accounts reconciled within five days of the end of the month and balances reviewed with the responsible lawyer as well as by the managing partner?

Are

clients required to replenish trust retainers on ongoing matters?

Are

clients provided with trust fund reconciliations on a monthly basis?

These are some of the many aspects of running a good practice. Making it all work takes a bit of time.

Have

Does

your financial accounting system provide you with all necessary feedback that allows you to meet all firm obligations on time?

The views expressed herein are strictly those of David Bilinsky and do not reflect the opinions of the Law Society of British Columbia, CBABC, or their respective members. David J. Bilinsky, Practice Management Advisor (on leave), Law Society of British Columbia Email: daveb@thoughtfullaw.com Blog: thoughtfullaw.com JUNE 2021 / BARTALK 7

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DIGBY LEIGH

Moving Away from Hourly Billing How do you do it?

lients are demanding more price certainty and law firms are responding slowly with alternative fee arrangements, but the traditional mindset of billing by the hour is limiting any significant change. Law firm profitability models are based on getting lawyers to record ever increasing amounts of recorded hours, which are then passed onto clients as billed hours. The more recorded hours, the more profitable and the more revenue that is generated for the partners. This is a lot of inertia to overcome, if there is to be decisive movement away from the hourly model. This article will touch on some strategies that can be implemented to move away from hourly billing.

really requires a fundamental shift, which necessitates firm-wide effort.

Some firms have gone to great lengths to develop sophisticated technology to predict how much time will be required to complete a complex project, then perhaps round up a little and lock in a price. This is a partial solution, but it does not deal with an overarching issue that legal costs are becoming higher all the time and technology is producing alternative solutions to creating streetwise legal help that often bypasses the lawyer.

Value pricing requires strong listening skills as value is not determined by the lawyer but rather by the client. You need to probe into why is this project important; is timing critical; what if the project was not completed now; what is the economic impact of a successful or unsuccessful outcome; and why is it important to the prospective client for your firm to carry out the project? If you listen intently enough by being “interested and curious,” you will develop a clear understanding of the value your client sees in you handling the project.

It is time to step back to explore if there are better ways of delivering legal services. What follows is an approach that is good for clients, good for lawyers and good for law firms. It starts with a determination that you will embrace change because it 8 BARTALK / JUNE 2021

If you are not going to price based on hours spent (in effect a cost-plus method), then how should price be determined? Two other approaches are based on market prices or value delivered. Most law firms already use market pricing for standardized projects, such as incorporations, conveyancing, undefended collections, estate planning, and corporate annual maintenance. Even complex matters have certain market ranges, such as M&A transactions, drafting employment agreements, and bankruptcy proceedings.

What is important to appreciate is that if you are not billing by the hour, your profit is affected by the efficiency in which you deliver

the services. To be successful, you should institute the necessary management tools so that you create a continuous learning loop. Your efficiency will improve over time and the firm will become more profitable. Tracking billing realization rates will give you a good idea of which files are more or less profitable. It will be key to learn from these results and adjust your delivery of legal services to reflect what you learned. Over time, you should become better at pricing, enhance your precedent system and improve your allocation of resources to your projects (i.e., paralegal/lawyer breakdown of time). This is where the cultural shift takes place. It is no longer how many hours are recorded; rather, it is how good are your precedents? How did you tackle that project? Who did the work and could this be altered? Should you adjust your pricing for future similar projects? Eventually, the question won’t be whether the file is profitable, but rather what did you learn and how are you going to incorporate the learnings as you move forward? Getting paid will be much easier as there should be no questions as to how many people worked on the file and if their time was all good time. Lawyers get to work in an environment where more than time establishes their value to the firm; clients get price certainty; and law firms are rewarded for sound practice management. Digby R. Leigh, founder of Digby Leigh & Co. Launched Frank Fee™ which eliminates hourly billing. Co-Founder of AltFee. dleigh@ leighco.ca. linkedin.com/in/digbyrleigh.

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KENNETH ARMSTRONG, QC

Managing Change in a No-Fault Environment The times they are a-changing

he introduction of nofault style automobile accident insurance in British Columba took effect May 1, 2021, after which anyone injured in a motor vehicle accident will not have the right to an action in tort against the person who injured them. Further, the enabling legislation provides any dispute about insurance benefits payable by ICBC must be heard by the Civil Resolution Tribunal. As such, there will be substantially less litigation arising from motor vehicle accident claims. The runway is long: the number of newly commenced motor vehicle accident tort actions will likely begin to decline about a year after no fault comes into effect, and the number of outstanding motor vehicle accident tort actions will likely begin to decline about three to four years later. Roughly 1500-1800 lawyers practice in the area of motor vehicle accident litigation in British Columbia, roughly 2/3 representing plaintiffs and the other 1/3 (including the writer) representing ICBC insured defendants. Although there’s time, those lawyers will have to find new practice areas — but where? In Trial Lawyers of British Columbia v. British Columbia (Attorney General) 2021 BCSC 348, Chief Justice Hinkson held the legislation granting the Civil Resolution Tribunal exclusive jurisdiction over certain motor vehicle accident injury tort claims and liability disputes unconstitutional as usurping the role of s. 96 courts;

however, the Chief Justice upheld the provision granting the Civil Resolution Tribunal exclusive jurisdiction over entitlement to accident insurance benefits under the Insurance (Vehicle) Act. Insurance claimants will likely wish assistance navigating their early interactions with ICBC and matters before the Civil Resolution Tribunal, although there will most certainly be substantially less work than currently available for tort claims. There is opportunity to find creative ways to provide affordable legal support such as assistance writing demand letters, filing CRT claims, or providing legal opinions for their submissions to these claimants. Lawyers practising motor vehicle accident litigation are regularly in trial, whether for plaintiff’s or insured defendants. They are also experienced at applying foundational legal principals to the specific facts of their client’s case. That experience is transferrable to other areas of litigation. Indeed, some personal injury lawyers have already started expanding their practices into employment litigation, estate litigation, medical malpractice litigation, and class action litigation. Further, there will continue to be litigation surrounding many other types of injury claims. The significant number of self-represented parties in the family courts system suggests there may be an opportunity

for seasoned trial lawyers to explore that field, although it will require learning the foundational law, which can be complicated and technical. Lawyers representing plaintiffs in injury claims have demonstrated innovation in fee arrangements with their clients and in marketing to attract clients. They have learned to trust experts with matters such as marketing and website design. Their sense of innovation will help them develop new practice niches and new ways to make legal services more accessible to the public. The many lawyers practising in this area are ably supported by talented administrative professionals who may also be affected by this change. Lawyers should remember to support their administrative professionals with training and/or career counseling as they transition their careers. A substantial majority of people with a legal problem don’t seek any legal advice. Perhaps they don’t know their problem is a legal problem, or that they have legal rights; perhaps they are intimidated by the high cost of legal fees. Lawyers in motor vehicle accident practices have an opportunity to reflect upon opportunities like unbundled legal services and alternative fee arrangements to increase access to justice for those people. Lawyers practising motor vehicle accident litigation have time and opportunities to diversify their practices. There’s no time like the present to start! Kenneth Armstrong, QC is managing partner of Armstrong Naish Trial Lawyers, an insurance defence firm, and was CBABC President (2019/20). JUNE 2021 / BARTALK 9

guestcolumn KARLAN S. MODESTE

Stripped

hree days before Black History Month, Mamadi Ill Fara Camara was pulled over by City of Montreal Police for allegedly using his cellphone while driving. During the stop, Mr. Camara witnessed another man suddenly attack the police officer. The assailant assaulted the police officer and took his firearm. Mr. Camara remained in his car and called 911 to report the assault. When additional police officers arrived, Mr. Camara provided a statement and left the scene. Shortly thereafter, police officers stopped Mr. Camara once again while other officers ransacked his home in search of the officer’s service weapon. Mr. Camara was arrested and charged with disarming, assault and attempted murder of a police officer, the same officer on whose behalf he had called 911. He was taken into police custody, strip searched, and detained for six days and nights. Mr. Camara was only released after video surveillance and DNA evidence proved that he was not the assailant. In our quiet horror, we whisper amongst ourselves that he did everything right, Mr. Camara is a husband and expectant father of twins. He is an engineer by training and a PhD student at Laval University. Prior to his arrest, he oversaw a laboratory at Polytechnique Montreal. He was not required to be perfect to have the protection of the state. Yet, he nearly was. I was pained to look at his small face behind his pandemic mask, but I needed to look. We all need to look. I imagine the fear he felt. Small. Black. Man. A tenuous legal standing. An immigrant without the protection of Canadian citizenship. 10 BARTALK / JUNE 2021

Many in the Black community live in a constant state of low-grade and sometimes high-grade fear. This is especially true for Black men. Insidious stereotypes invert reality by depicting Black men as dangerous and threatening. In fact, it is they who live in fear. Fear of a wrongful accusation, fear of appearing imposing, fear of being themselves. Black men are socialized to live with and deny this fear — a defensive posture that can be debilitating. We impose this standard on them rather than demand that our systems treat them with the respect they deserve. In the case of Mr. Camara, the criminal law system moved with the arrogance reserved for a Black or Indigenous accused. Double-down. Defend. Apologize. When we think about this case, we need to think about all that Mr. Camara lost that night and in those ensuing six days — what he can’t get back. His dignity, his sense of safety. As lawyers, we advocate vigorously in defense of our clients and work to secure recovery on their behalf. But we cannot reset the clock. I started my legal career in criminal law with Nova Scotia Legal Aid. In 2017, I returned to Nova Scotia for the swearing in of a former Legal Aid colleague and fellow African-Canadian lawyer, Judge Rickola Brinton. While there, I had a chance to reconnect with another judge whom I had appeared before in youth court. He reminded me of a moment that stays

with him to this day. He recalled my colleague’s submissions on whether a custodial sentence should be imposed against his client. In my colleague’s words, “you only have your first strip search once.” The judge refused to send that youth to jail. A primary narrative about Black families centres on poverty, crime, single parents and a lack of opportunity. A less discussed ethos that guides many Black households is the importance of education, compliance, respect, and submission — particularly to state powers and specifically for Black males. I know these lessons. I have three brothers. Each has a different physical stature that renders them vulnerable in different ways. To my horror, each has faced sexual aggression, physical aggression, and assaults in part because of the bodies they inhabit. Like any other household, parents approach child rearing with caution, care, and a profound hope that their children will lead good lives. In Black homes, these lessons are also primers for protecting one’s safety and, in some cases, one’s life. But, we can’t contract out of racism, not through education, poise, or training. Consider this: we live in a country where your call to 911 to report a crime can lead to your strip search and detention for six days and nights. As a nation, we must demand better. Karlan S. Modeste is a staff lawyer with the BC Teachers’ Federation, an LL.M. Health Law candidate at Osgoode Hall Law School, Graduate Fellow at The Law Foundation of British Columbia, and a sessional instructor at the University of Fraser Valley. *The opinions expressed are those of the author. Twitter: @karlanmo. Photo credit: Karolina Turek Photography.

advocacyinaction PROVINCIAL GOVERNMENT NEWS The provincial budget announced on April 20 included funding to modernize court services, implement technology solutions and improve Internet availability to increase access to justice. In addition, there was funding to implement the Declaration on the Rights of Indigenous Peoples Act by moving forward with analysis of legislation. CBABC was pleased to see forward movement in these areas, which were part of our recommendations in Agenda for Justice 2021 (bit.ly/bt0621-aia-1).

\ EMAIL: ADVOCACY@CBABC.ORG

examples and solutions to achieve improvements. The courts appreciate receiving this information to add to the information from court staff and collected data about case volumes and court usage. The courts also share forthcoming changes and suggestions for how counsel can adapt to

VOLUNTEERS NEEDED!

COURT SERVICES The past year, the way lawyers provide services and how court proceedings are managed have transformed. CBABC’s Access to Justice and Court Services Committees have been taking a deeper dive into concerns about COVID-19 modifications to court services and how those may be hampering access for some users of the systems. The committees are also looking at the consequences of existing, outdated systems. Since April, members have been invited to share stories regarding concerns about phone-in court scheduling, e-filing, and virtual hearings at feedback@cbabc.org. CBABC leaders meet frequently with the Chief and Associate Chief Justices and Judges of BC’s courts to share the reality and impact of the current processes on litigants and lawyers, particularly behind the scenes. Members’ stories and responses to Thoughtexchanges provide

This diverse and dedicated group of volunteers prepared a submission that contains 16 recommendations, including the vital need for disaggregated data to identify issues on how police interact with members of the public. The submission also addresses the lack of accountability for police-involved deaths, the undesirable effects of seizure of personal property, disciplinary proceedings for police, and the need to reduce reliance on firearms and lethal weapons by police.

new proceedings. As a result, CBABC has prepared members for changes to the Provincial Court Rules, the Northern Bail Project, the digitization of the Court of Appeal, new forms of court introductions, and moving to MS Teams.

POLICE ACT REFORM In April, CBABC filed a submission (bit.ly/bt0621-aia-2) to the Special Committee appointed by government to make recommendations to reform and modernize the Police Act. After a call for volunteers, representatives of SOGIC and Social Justice Sections joined representatives from the Access to Justice, Equality & Diversity, Indigenous Justice Advocacy, and Legislation & Law Reform Committees to research key topics and provide valuable input.

CBABC’s policy submissions are prepared by members who volunteer through committees, working groups, and Sections. If you would like to join colleagues to improve legislation and law reform, the administration of justice, or regulation of the profession, complete the Committee Volunteer Form (bit.ly/bt0621-aia-3) or join your Section’s Executive. Learn about the different opportunities (bit.ly/bt0621-aia-4) on our nine policy committees and working groups, and contact the Director of Advocacy, Jo-Anne Stark, at jstark@cbabc.org for more information about the current initiatives. Many thanks to all of the hardworking and dedicated volunteers who shaped Agenda for Justice 2021, briefing notes, submissions, and letters to the Law Society, provincial government ministries, and the courts.

JUNE 2021 / BARTALK 11

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DAVID AVREN

In-House Legal Practice Management

o you want to manage an internal law department? Are you sure??!!

Practising law is the business of law firms; in-house practice and legal departments are just part of a business that has many other priorities. Legal group budgeting, financial systems, hiring, firing, promoting, contract management, records keeping, and IT have to integrate with everything else. General Counsel is just one member of an executive team. The Legal Department (“Legal”) is just a small — but important — part of something much bigger. Budget and resourcing come first. Is budget sufficient? Are there enough lawyers and support staff? Can we hire outside counsel for the specialist, sensitive or high horsepower matters? How is the budget set: is it based on previous years adjusted for known future matters? Bottomup budgeting for Legal is difficult, even risky. Does Legal cross-charge other departments, requiring a type of timekeeping in all or some matters? (Yes, some in-house groups have to do it.) Is Legal full-service or are there areas you will send out, like litigation, tax issues, major deals? Budget enough for external counsel and negotiate a reasonable fee arrangement with your firms. How do you retain and manage external counsel? Can other departments directly retain them, or does every retainer go through Legal? 12 BARTALK / JUNE 2021

Better the latter: Legal stays informed, and can direct, evaluate, and shape the external work to fit into the general picture. External counsel should always report to an internal lawyer, with detail and frequency of the reporting depending on internal workload, the trust factor, and the matter’s importance. What’s the company’s line of business and its general risk tolerance? Risk aversion means more legal work and a higher standard of advice; 80/20 won’t be enough, if it ever was. Is the IT resourcing right? Internal Legal is document heavy and Legal is often an organization’s institutional memory, the first stop in looking for contracts and history. Good document management software is important; get the attention of the IT group to help implement your preferred solution.

The Legal Department is just a small — but important — part of something much bigger. What about the entity’s contracts? Legal is assumed to have all the signed contracts (frequently a wrong assumption). May as well offer to create the contract archive if there isn’t one already. A simple searchable spreadsheet catalogue will do, but be

sure to remind the company regularly to send Legal all signed contracts at or above defined value or risk levels. Try not to take on contract management such as diarization of key contract dates. That should be for the business groups. Make it clear that Legal helps with the contracts, but does not manage them. Other questions: what is the file naming convention, is metadata automatically stripped from email documents, if open space for lawyers comes along what position will you take on it, do you have mentoring/buddy systems for new lawyers and are you coaching the new juniors, can you pay for continuing legal education, what’s the precedent system like, do you have approved templates internal clients can use in simple matters like consulting contracts, how are requests for legal help made (do they all come to you, go through an online queuing system, or does a client just call their favourite internal lawyer)? How collegial and happy is the department and are there recruitment and retention challenges. If so, why? Do new hires know the limitations of the annual raise process? How experienced should your lawyers be, senior or junior, and what are the implications? Tell your team what’s going on in the company, listen to them, support them. It’s about them, not you. And don’t take the best office for yourself! David is VP Legal at the Real Estate Council and has happily led legal groups for most of his career.

Senior Legal Counsel Our client, Nexii, has developed an innovative whole building solution that enables the rapid assembly of high-quality, environmentally sustainable buildings. Edge Legal Recruitment has been engaged to lead the search for Nexii’s first in-house lawyer. You’ll need 10+ years of corporate/commercial law experience, gained at a major law firm and in-house. Reporting to the Global CFO, you will be responsible for the delivery of commercially minded, expert legal advice and guidance, to assist and support Nexii in the achievement of its strategic and operational goals. You’ll lead, manage and grow the in-house legal services function for Nexii. This is a high-profile, in-house position that offers a real seat at the table of a fast-growth company as they scale. This is an exclusive search with Edge Legal Recruitment. Please reach out to our trusted advisor, Lindsey Petherick, Lindsey@edgerecruitment.ca

JUNE 2021 / BARTALK 13

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JANNA CROWN

Sometimes It’s Not So Obvious

Suggested practice tips for junior lawyers

efore diving into the topic of practice management tips, it is useful to first establish what practice management is. As a junior, I’m never far away from my Professional Legal Training Course (“PLTC”) binders, and I consulted the handy practice management binder before writing this article. Practice management is broad, and has many different aspects, including opening a law practice; law office systems and procedures; client file management and timekeeping; client relations; and trust accounting. Before starting this article, I consulted with some of the lawyers at my firm, and some of my friends who have been practising for a while for their tips. And that is my first tip: use your network. Ask for advice from the other associates in your firm, and other lawyers senior to you. What worked for them? What didn’t work? Juniors can’t be expected to know everything, and it is reasonable (and good) to ask others for help and advice. Ultimately, you will need to filter through tips and suggestions to find what works for you but having a starting point with some direction is helpful — and potentially time and resource saving. On the topic of resources, knowing what resources are available to you and how to use those resources is invaluable. It seems like there is never enough time and tasks often 14 BARTALK / JUNE 2021

take longer than you think. Some tasks that we’re told are “simple” and “shouldn’t take long” do take longer because we haven’t done it before. Becoming efficient with the resources you have is essential. Get comfortable with your firm’s document management system and ask for assistance from the associate group. An issue or topic of research may be new to you, but others at your firm may have looked at the issue before and can steer you in the right direction. Canvassing your firm’s resources thoroughly at the beginning of a task can prevent you from reinventing the wheel. You may also be the first one at your firm looking into the issue — on the job learning is career-long in law!

The better you are able to communicate with the non-lawyers on your team, and the stronger those relationships are, the better you can serve your clients and avoid misunderstandings. Aspects of practice management focus on things that juniors may not deal with directly, such as opening and closing files, dealing with physical mail, accounting systems, and office security. While juniors may not be involved with these

aspects of practice directly, all lawyers — which include juniors — are responsible for supervising the work of non-lawyers in the firm pursuant to section 6.1-1 of the Code of Professional Conduct (“CPC”). That brings me to my next tip: be good to the non-lawyers in the firm. Take time to cultivate positive relationships with the assistants, paralegals, and the other non-lawyers you work with. In addition to being a wealth of knowledge themselves, non-lawyers form an integral part of your practice. You will need to rely on them — sometimes on very short notice — to meet the needs of your clients. The better you are able to communicate with the non-lawyers on your team, and the stronger those relationships are, the better you can serve your clients and avoid misunderstandings. It’s also a good time to get familiar with the CPC and the Law Society Rules (the “Rules”). Not only do the Rules and CPC spell out our obligations as lawyers, but they also contain practical practice management steps, such as verifying an individual’s identity remotely during a pandemic. Maybe keep those PLTC binders close by for easy reference. Lastly, remember to have patience with yourself, there is a steep learning curve. We’re learning as we go and that learning is career-long. No one expects us to know everything the day we’re called to the Bar! Janna is an associate at Moore Edgar Lyster where she practices in all areas of labour, employment, human rights, regulatory, and administrative law. linkedin.com/in/jannacrown. Twitter: @gastown_crown.

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DOUG JASINSKI

Unconventional Law Firm Design in a Virtual World

LOOKING BACK

WHAT COMES NEXT

he traditional law firm had consistent, recognizable parameters. Upscale premises in a downtown building. Three founding partners’ names on the masthead. A crisply efficient receptionist serving coffee while clients waited in a lobby festooned with a stately wall of expired case reports. An industrious squadron of slightly-harried legal assistants dotting the office interior and besuited, bespectacled lawyers over along the windows, standing (well, okay, sitting mostly) ready to provide bespoke legal services from engagement to conclusion in exchange for a completely indeterminate quantity of hourly fees.

WHAT: Innovative firms will become

This sepia-tinged scene was already undergoing a slow demise pre-pandemic, but now it all seems utterly quaint. THE BIG SHIFT

“Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.” — Ferris Bueller Given the last 15+ months, Mr. Bueller’s 1986 philosophical musings now look prescient. Unmoored from our offices, all aspects of law firm modus operandi are suddenly up for debate. Some will take advantage of these changing seas to chart bold new directions, some will hope to scramble back to port, and a few will be left twisting in the wind.

more selective about what they do, honing in on niche and discrete elements of the legal process (e.g., specialist settlement counsel) rather than offering end-to-end anything-thatneeds-doing help. See Sonali Sharma’s article on unbundled services for more in this vein. WHERE: Being liberated

from the physical plant has allowed some firms to recalibrate and also cast a wider net. 20-lawyer firm Hammerco Lawyers has just moved to a more central Vancouver location while shrinking their footprint by 50%. Co-Managing Partner Morgyn Chandler says the firm was already headed toward an “office hoteling” concept, but the success of pandemic-induced remote work confirmed the approach’s validity, resulting in the firm reducing their footprint further still. Chandler’s own practice is geographically split between Vancouver and Vancouver Island. She notes clients’ quick acceptance of remote services now means less commuting for her, but more importantly opens up the entire province as a potential client base of the firm. It is also now easier for clients in smaller and remote locales to access a broader range of legal expertise and a bigger talent pool.

HOW: Artificial Intelligence (“AI”)

in a small or mid-sized firm? Yep, it’s here. Family law firm Henderson Heinrichs recently deployed Settify software on the firm’s website, an AI-powered online client service tool that helps clients prepare for their initial consultation. Heinrichs describes their initial impression of the tool as “overwhelmingly positive.” HOW MUCH: The recent transi-

tion to no-fault auto insurance is another driver of change (no pun intended). Many personal injuryintensive firms are now transferring their skillsets to other practices. In this regard Hammerco’s Chandler notes they are seeing success translating the firm’s comfort with contingency-fee arrangements to areas like commercial and estate litigation where hourly fees previously prevailed. Speaking of fees, it feels like we’ve been talking about the “death of the billable hour” forever with little actual movement, but perhaps the tipping point is now at hand. North Vancouver lawyer Digby Leigh moved his firm away from hourly billing and reports it has been a great success from the client perspective as well as driving significant operational changes within the firm. He expands on this topic elsewhere in this issue. CONCLUSION

What once was sacred is sacred no more. Liberated from the old playbook, firms are taking this opportunity to rethink all aspects of their operations. You should too. Doug is president of legal marketing agency Skunkworks Creative Group and an erstwhile litigator. Find him at skunkworks.ca. JUNE 2021 / BARTALK 15

sectiontalk u ADVOCACY Several Section members have provided invaluable input in responding to contemporary legal issues in the BC court system: The

continuation of civil jury trials — Civil Litigation, Construction Law.

Access

to justice amplified by the pandemic — Civil Litigation, Family Law, Criminal Justice, Wills & Trusts, Administrative Law, Unbundled Legal Services, Children’s Law, Social Justice, Immigration Law, BC Northwest.

Issues

relating to the Land Ownership Transparency Act and the Land Ownership Transparency Registry — Real Property—Vancouver, Commercial & Real Estate—Okanagan and Vancouver Island.

u NOTEWORTHY MEETINGS Tips and Traps for Drafting Trust Deeds and Wills Trusts — Wills & Trusts—Vancouver Andrea Frisby and Laura Peach, both of Legacy Tax & Trust Lawyers, provided tips and traps to consider when drafting trust deeds and wills trusts. Annual Administrative Law Case Law Update — Administrative Law In this popular annual meeting, Meera Bennett and Katie Webber, counsel for the Ministry of Attorney General, led the discussion on key decisions of the past year, including the post-Vavilov landscape and how the revised standard of review framework has been applied so far in BC. Real Estate Development — Local Government Development Approvals — Real Property—Vancouver Kathleen T. Higgins discussed current legislation and relevant case law, and provided a primer on the different kinds of approval that local governments grant, such as Official Community Planning and zoning amendments, subdivision, development & building permits. Unusual Issues That Arise From Your “Typical” Estate/Probate Matter — Wills & Trusts—Okanagan Leah Card of Fulton & Company LLP discussed unusual issues that can arise from typical estates and probate matters.

16 BARTALK / JUNE 2021

Trials and Tribulations with Mr. Justice Alan Ross — Civil Litigation—Vancouver In this popular webinar, Justice Alan Ross spoke candidly about his experiences as a newer member of the judiciary.

u ON PRACTICE MANAGEMENT Many Sections hosted meetings discussing topical and useful practice management tips. Law

Society’s Anti-Money Laundering Rules — Client Identification and Verification: This popular Business Law meeting, hosted by Barbara Buchanan, QC, detailed the anti-money laundering (“AML”) obligations of lawyers. Barbara also provided practice tips for lawyers who will need to verify or identify their clients as part of their AML obligations.

Navigating

Through Practice Management Challenges: The General Practice, Solo & Small Firm Section hosted Allison Wolf, PPC, who provided an interactive and comprehensive discussion on common practice challenges such as managing time and clients efficiently and preventing burnout.

Where

Do We Go From Here — Thriving in a Post-Pandemic Legal Market: The General Practice, Solo & Small Firm also hosted Heather Suttie, who presented practical strategies and tips to help small firm and solo lawyers determine their marketing budgets, ensure they are targeting the right clients, and thrive in their practices.

Staying

Engaged While Transitioning Into Retirement: The Senior Lawyers Section hosted Bonita Thompson, QC, Sonali Sharma, Jo-Anne Stark, Derek Brindle, QC, and David Dundee. The panelists shared their personal experiences and relevant information about innovative and evolving approaches to professional services while providing more balance and increased flexibility for senior lawyers, especially during the pandemic.

If you are interested in this content, some meetings are recorded and available to CBABC members. Contact sections@cbabc.org.

\ EMAIL: SECTIONS@CBABC.ORG

SOGIC UPDATE — by Lisa M.G. Nevens (they/them) and Dustin Klaudt (he/him)

SOGIC Will Hold Two More Section Meetings This Year These meetings will centre the experiences and needs of LGBTQ2SI+ Black, Indigenous, and People of Colour, who are frequently marginalised within our communities: 1. A joint Section meeting with the Aboriginal Lawyers Forum is planned to educate members of all Sections on two-spirit identities and the legal issues that may be faced by those who hold those identities. “Two-spirit” is a term used in some Indigenous cultures to describe some gender, sexual, and/or spiritual identities. The session may also address how LGBTQ2SI+ concerns were addressed by the inquiry into Missing and Murdered Indigenous Women and Girls. 2. A joint Section meeting with the Civil Liberties/Constitutional Law Section on the intersections between race, sexual orientation, and gender identity in the context of policing. We have also continued our outreach to courts and administrative tribunals in BC and across the country to help improve access to justice and experiences within the justice system for trans people and all those with minority gender identities and expressions. Finally, Pride season is coming up! While we anticipate that most, if not all, Pride events will be online again this year due to the pandemic, be on the lookout for social media campaigns highlighting Lawyers with Pride.

WLF UPDATE — by Kyla Lee

Elevating Women in Law Firms: Practical Tips and Advice It is no secret that women leave law firms and the practice of law altogether at a much higher rate than men. Data (bit.ly/bt0621wlf-1) also shows that men are listed as partners in law firms in bigger numbers than women. As a profession, we must think about how we elevate and acknowledge the women in our law firms. Here are three tips: 1. Celebrate Successes, Big and Small — Celebrating the success of women goes a long way in fostering a culture where women are perceived to be competent and feel valued. Consider sending out an email at the end of the day to the firm congratulating people on their big and small achievements to boost office morale and the perception of female members of the firm. 2. Think Before Assigning a Task — When assigning a task, stop and ask yourself why you have chosen that person for the task. Are you assigning the task because it is a “soft” task that you associate with women? Soft tasks involve more emotion-forward or clerical work. Examples include the clerical work getting a file ready for trial, letting a client vent so that they feel heard, and handling organizational tasks. Keep track of the tasks you assign each person at your firm, and code them “hard” and “soft” to see whether there is an imbalance. 3. Make Space for Women to Speak — In meetings and discussions, be cognizant of how much space men are taking in the discussion and be proactive in correcting discrepancies. If men dominate the conversation, remember to solicit opinions from the women present.

JUNE 2021 / BARTALK 17

feature GREG PALM

Don’t Shoot Yourself in the Foot (or the Wallet)

Common mistakes that cost lawyers fees

he only thing worse than working as hard as we do for our clients is working that hard for less than a fair fee (or even for free). Here are seven mistakes that lawyers make most often that jeopardize their right to be paid fairly for their hard work. Each could legitimately command an article of its own, so use them only as a starting point. 1. NO RETAINER AGREEMENT Despite the fact that lawyers frequently advise clients entering into business transactions to reduce the terms to writing, they are remarkably inconsistent about doing so themselves. Without good retainer agreements, lawyers may preclude themselves from (among other things): withdrawing for non-payment of interim bills, insisting on retainers, charging for travel time, charging for staff time, and charging more for exceptional results. 2. LACK OF SECURITY Lawyers frequently prejudice themselves by acting without retainers even though it seems unassailable that it is better to be secured or to know, at the outset, that a client will be unable to pay. It should also be noted that a retainer is not the only way to solve the security problem. Mortgages against land, security interests in personal property and assignments of litigation or transaction proceeds are very useful, but often overlooked, alternatives. 18 BARTALK / JUNE 2021

3. INACCURATE OR UNQUALIFIED ESTIMATES Depending on the circumstances, an estimate of cost may be contractual, thereby requiring the bill to come within a reasonable tolerance of it. Even when they are not “true estimates,” predictions of cost give rise to clients’ expectations, and missing them often leads to disputes and to fee reductions on reviews of bills. Take the time to ensure that estimates are well thought out and are properly qualified by the facts and circumstances known at the time, and if projections change, communicate the change in a timely way. 4. FAILING TO DOCUMENT TIME OR INSTRUCTIONS The time spent by the lawyer is a factor that must be considered on a review of a bill even where the fee is based on something other than time spent (such as a flat fee or a percentage contingency fee). Lawyers who keep a good record of time spent and what it was spent on — even when they don’t have to in order to calculate their fees — give themselves a major advantage if their charges are ever challenged. Documenting instructions is equally important. Showing those steps, which the lawyer might have advised against or which might not have been strictly necessary or were specifically instructed by the client, can go a long

way toward ensuring that the lawyer is paid for work to which the client later objects. 5. IMPROPER WITHDRAWAL Engagements for a single transaction, such as a piece of litigation or a purchase and sale transaction, have been frequently held to be “entire contracts.” Where lawyers withdraw from entire contracts for non-payment of interim bills in the absence of a contractual term allowing them to do so — or where they withdraw prior to completion for any other reason not amounting to cause — they may well find that they must refund any fees paid up to that point. 6. FAILING TO ASSERT LIEN OR CHARGE Although lawyers have been given significant statutory and common law rights to ensure payment, including possessory and charging liens and charging orders, they frequently make no use of those rights, use them incorrectly or inadvertently waive them, thereby losing valuable leverage to compel payment of their bills. 7. MISSING LIMITATION DATES A review of an unpaid bill must be commenced within 12 months of its delivery. A civil action to collect on a bill must be commenced within two years. In either case, if more than two years has passed since the retainer was completed and the lawyer could have billed, the lawyer’s claim will be out of time. Greg Palm is a partner at Hamilton Duncan and devotes a significant portion of his diverse civil and commercial litigation practice to disputes between lawyers and their clients about legal fees.

communitynews BCLI & CCEL UPDATE

CBA NATIONAL MAGAZINE by Jennifer Brown

New BCLI Publications on Child Protection

Taking the Business Approach to Legal Services

In late May, the BC Law Institute marked the end of its Modernizing the Child, Family and Community Service Act Project by releasing two new publications.

The profession has made headway, but many lawyers still need to learn to become project managers by default.

The Report on Modernizing the Child, Family and Community Service Act takes a focused look at British Columbia’s child-protection statute and makes 39 recommendations for its reform. These recommendations provide a detailed blueprint for modernizing the act’s language, enhancing its procedures and safeguards, and supporting children’s rights.

In today’s competitive market, practitioners need to know, more than ever, how to scope and schedule a project, estimate its cost realistically and then manage its execution.

The Study Paper on Youth Aging into the Community contains comparative legal research on how jurisdictions support young people who were, as children, in the care of the child-protection system as they now come of age as adults. It compares British Columbia’s approach of using mainly ad hoc policies and programs with the co-ordinated legislative frameworks found in Australia, England, New Zealand, and the United States. BCLI thanks the Law Foundation of BC for supporting this project, the members of the Child Protection Project Committee for assisting BCLI in developing its recommendations, and respondents to the project’s public consultation. Copies of the report and study paper are freely available at bcli.org.

But do they have the skills to do it all efficiently? It depends if they have learned to incorporate essential project management (“PM”) principles into file management. Large firms have been using it with success for the last decade, acknowledging that large corporate clients are demanding that PM be applied when starting a large matter. Read the full article uuu

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JUNE 2021 / BARTALK 19

feature

TOM SPRAGGS

Tips and Considerations for Managing Pro Bono Work

he phrase “pro bono” often brings up a plethora of emotions for lawyers and the public alike. Sometimes, pro bono is conflated with “free.” Pro bono is much more than free. A common definition of pro bono is working for “the public good.” Many lawyers find tremendous satisfaction and purpose in solving problems on a pro bono basis, which can be provided at no cost and reduced rates. Lawyers who work on a pro bono basis most often do so because the people they are helping would not otherwise be able to receive help due to the cost of market-priced legal services. The passion and sense of purpose that drives pro bono work is often personally rewarding and highly satisfying. Understanding that someone who was previously left with undesirable options can now access due process and justice through pro bono work is profound. Helping those in need of assistance improves the standing of lawyers in society and strengthens public awareness and engagement of the justice system processes and the rule of law. It is all good stuff! The current reality is there is much more demand for pro bono services than lawyers can supply. Those doing pro bono work will likely find a significant, and probably insatiable, demand for their time. These demands can be hard to balance and manage. Employing principled strategies to govern your pro bono efforts will help you to continue to provide the purposeful pro bono work without getting overwhelmed by it. 20 BARTALK / JUNE 2021

SET PRO BONO GOALS WITH TIME KEEPING The conventional business wisdom that you can only manage what you measure is essential for setting up how you will manage your time. Find ratios that work for you. The frequently cited statistic that lawyers often work in excess of eight hours a day but bill less than three is an example of accidental pro bono. WORK YOUR PRO BONO IN A CLINIC One of the potential frustrations of a pro bono retainer is that without a defined scope, you may find a lot more could be involved than intended. This can be a significant deterrent for lawyers wanting to find predictability in their pro bono offerings. Clinic work can be highly efficient particularly given the clinic coordinator will take care of scheduling and the individuals participating in the clinic have clear expectations about the lawyer’s role. The ability to limit the retainer to short issue spotting can also be a great way for people seeking help to get clarity. Clinic work is an excellent environment to practice interviewing and client communication skills in addition to increasing competency in areas of law you may be considering as a marketable practice area. Some clinics are now also offering virtual clinic work that can allow busy lawyers even more efficiency for their pro bono services.

BILL AND DISCOUNT ALL OF YOUR PRO BONO TIME This strategy is a healthy consequence of the strategy of tracking and reviewing your time. One of the benefits of doing pro bono work, billing at a full market rate and then discounting 100% is that you build the discipline of keeping time and an appreciation of how you choose to spend it. Billing then discounting pro bono work also helps communicate the value of the work you provide. CREATE PROCESS BOUNDARIES AND POLICIES FOR YOUR PRO BONO WORK Most lawyers have experiences with someone who, when learning you are a lawyer, want to know “one thing” or they have a “quick question.” All of that is almost always a request for free legal advice. Protect yourself, the integrity of your considerations and advice by creating a customer-friendly policy. Much like a medical doctor who may get asked for “informal” medical advice, patients are best served with a proper intake and examination process. Have a process that prevents you from giving “off the cuff” advice until you have done a conflict check, opened a file and determined whether it will be billable or pro bono, without exception. You will find it gets easier every time you establish those boundaries and the people asking you for free advice will value your eventual advice more. The best strategy of all is to continue doing what works for you and change what is not or could be improved. May you continue working in the public good. Tom Spraggs is the owner of Spraggs Law and a Bencher of the Law Society of British Columbia.

feature

KRISTA JAMES AND KEVIN LOVE

Representing Clients with Capacity Issues

ccess to justice is critical for people with disabilities. However, dementia, traumatic brain injury, intellectual disability, substance use, mental illness, and other factors can impact a person’s ability to instruct counsel and make legal decisions. Litigation can cause additional stress, pushing a person with precarious capacity to the breaking point. Fortunately, basic practice strategies can bolster client capacity and support their participation in legal matters. Adapting our work to accommodate disabilities is not just good practice — it is required by law. The United Nations Convention on the Rights of Persons with Disabilities (Article 12), ratified by Canada in 2010, requires States Parties to “recognize that persons with disabilities enjoy legal capacity on an equal basis with others” and “take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.” People with disabilities are also entitled to accommodation under the BC Human Rights Code. A client has capacity to instruct counsel if they understand the retainer agreement and the key legal and financial issues related to the lawyer-client relationship. The Law Society Code of Professional Code (Rule 3.2-9) recognizes that a client may be capable of making some decisions, but not others, and states that “the key is whether the client has the ability to understand the

information relative to the decision that has to be made and is able to appreciate the reasonably foreseeable consequences of the decision or lack of decision.” Since capacity hinges on what a client is able to understand, and is not static, good communication and case management can make all the difference in supporting access to justice. Lawyers should assess what methods of communication work best for each client. Plain, straight forward language is ideal, including in the retainer agreement. Aim for a reading level of Grade 8 or lower. Sarcasm, jargon, and metaphor can confuse some people who have difficulty understanding information. Avoid the need for snap decisions by providing information and advice well ahead of deadlines. If you must deliver large volumes of paperwork all at once, provide a short explanation in advance to ensure the client is not surprised and overwhelmed. Keep meetings short and focus on a limited number of topics. Provide a short agenda in advance so the client knows what you will discuss. Create brief to-do lists after meetings to support follow-up. If you suspect that capacity may be an issue, make file notes on matters that confirm capacity, such as memory recall of previous conversations, the client’s

familiarity with the legal process, or questions asked by the client that demonstrate comprehension. Trusted support people can be involved to help some people with disabilities make, communicate, and implement their decisions. Supporters often understand a person’s unique communication needs and abilities. Their presence can bolster capacity and reduce litigation anxiety. In BC, supportive relationships can be formalized in a representation agreement. The person being supported retains full legal capacity to make their own decisions under this approach. It is important to remember that supporters are there to assist, not take

over. Lawyers should also consider undue influence and issues related to privilege and confidentiality. Promoting access to justice requires lawyers to accommodate clients with disabilities and work collaboratively to overcome barriers. The Canadian Centre for Elder Law has a number of resources to support best practices, including their new Inclusive Investing resources on supported decision-making and their undue influence reference aid. Find them at bcli.org/ccel. Krista James is National Director, Canadian Centre for Elder Law. Kevin Love is a Staff Lawyer with the Community Legal Assistance Society. Twitter: @KristaElan, @CCElderLaw, and @clasbc. JUNE 2021 / BARTALK 21

feature MARK MEREDITH

Why Deal Mediation?

ver the past two decades, mediation has become a frequent process choice across a wide range of practice areas — family, personal injury, estates, commercial, and more. Yet, despite a breadth of experience with the potential value added by mediators, the process is typically invoked only once a dispute has arisen. Is there also a role for mediation or facilitated negotiation (referred to here as “deal mediation”) at the inception of a legal or other relationship — not in anticipation of a particular dispute, but with a view to facilitating negotiations so that they proceed more efficiently, avoid breakdown and preserve ongoing commercial and other relationships? While as yet uncommon, deal mediation has been pointed to as a process with potential to improve commercial transactions and relationships since at least 2000. Numerous articles and conference presentations have noted that deal mediation seems to have a natural place in the negotiation of commercial relationships (whether a simpler commercial contract or a more complex business merger, acquisition, or sale) and other arrangements having significant financial implications (such as a pre-nuptial agreement in family law or an application for regulatory approval in construction). A conventional deal negotiation typically follows the same paradigm: each party engages their own lawyers, and the lawyers each work in the interests of their own clients to help “get the best deal possible.” While most 22 BARTALK / JUNE 2021

lawyers endeavour to be at least courteous (generally, counsel know how to be civil, at least as long as the other side behaves!), the structure of the engagement still requires that each counsel “pick a side” — that of their client. While it is certainly not inevitable, experience shows that in many negotiations this “client-side” orientation leads to positional bargaining, which can supplant mutually beneficial outcomes. Even where a mutually beneficial outcome eventually results, the process may be painful and expensive, and ongoing relationships among the parties may be difficult. How can a mediator help avoid these pains? The introduction of a deal mediator may bring a number of advantages. The

deal mediator can bring structure, timelines, and process management to a negotiation, which can assist in maintaining momentum and avoiding inadvertent frustrations impacting trust. Given how closely flexibility and creativity can rely on trust, there may be a knockon effect of greater idea generation.

process professional can help both sides to the matter recognize that they are not necessarily engaged in a zero-sum game. Improved tone can be more readily achieved where a neutral buffer helps avoid and break impasses.

mediator can create structural pauses between direct communications — allowing sober second

thought with respect to the tone of a communication that the other side might perceive as aggressive or inappropriate. Sometimes,

the professional neutral can even give each of the parties somebody to blame other than the other party.

The

deal mediator may enable a less contentious negotiation. By engendering or preserving positive relationships, necessary postsigning cooperation among the parties may be facilitated. There are many steps between signing the deal and actual completion: interim operations by vendor between signing and closing; satisfying pre-closing covenants; determination of postclosing adjustments; post-closing cooperation (e.g., filing of tax returns, post-closing audits); and survival of warranties (potentially lasting for years after closing). Even where parties think that “the deal is done” and they can go their separate ways after signing, that is rarely actually the case.

Ongoing

relationships extrinsic to the deal itself may be preserved (whether those relationships are commercial, familial, or simply as members of a common community).

So, why deal mediation? Deal mediators can help the deal get done, and help parties and their counsel also survive and thrive to negotiate another day.

Mark Meredith is a tax partner with Clark Wilson LLP in Vancouver and serves as Treasurer of Mediate BC Society. Twitter: @ClarkWilsonLLP. linkedin.com/in/markmeredith1

feature CHILWIN CHENG

A Tool Every Lawyer Has, Few Know How to Use Well

The word processor — sharpen your saw

arpenters love their tools. They learn about how different saws work, how different saw teeth shapes can achieve different results, and when different saws are used for different jobs. Carpenters learn how to sharpen their saw, lubricate them, and how to store them properly. Carpenters exercise creativity to envision how their finished product will look. They use analytical ability to understand how different cuts and parts are assembled. But, they realize their creativity and analytical ability in the real world by using their saws (and hammers, and rulers, and pencils). In so far as I am aware, lawyers are not taught how to use their tools. We are taught that the common law, statutes, regulations, rules, and texts are our tools. Lawyers tell themselves they are paid for the knowledge and wisdom in their head — forgetting that they use tools to render that knowledge into a form for which clients pay. So, lawyers must learn to use their instruments as efficiently, effectively, and creatively as possible. Rather than pursue the usual laundry list of software and technology that lawyers “must-have.” I want to focus on the tool almost every modern lawyer uses: the word processor. Most of the standard word processing applications will have all or most of these features. And, lawyers really should learn to use them if they want to know how to use the tool they use daily.

Paragraph and Page Styling: This will help you standardize and format your text consistently, efficiently, and effectively. If you are pressing “Enter” twice to create space between all the paragraphs in your briefs, letters, and factums, then you are missing out on a huge timesaver. Insert Citation: Litigators produce Tables of Authorities. Solicitors, for long and complex agreements, create Tables of Contents. Using this feature, you can make these tables automatically and consistently. Insert Cross-Reference: How often have you referred to a paragraph, page, or clause elsewhere in a document. Then, you changed the location of the text to which the referenced pointed. Only, you forgot to change the cross-reference or missed it during proofreading. The Insert Cross-Reference feature will minimize the risk of this embarrassing and potentially costly error. Templates and QuickParts: Store your most commonly-used paragraphs, phrases, and other text and recall them using keyboard shortcuts or from a drag-and-drop menu. There are many Add-Ons you can add to super-charge an application like Microsoft Word. Most are relatively inexpensive, and all justify their cost in time savings or in the value of preventing some very embarrassing errors. Here are some:

Grammarly: a spelling, grammar, style, and consistency checker that exceeds (by a lot) the built-in grammar and spelling checker. WordRake: an editor that cuts out passive and redundant writing, especially good for those who aspire to plain language writing and drafting. PerfectIt: an advanced checker that picks up on drafting points such as undefined abbreviations, inconsistent use of defined or undefined terms, common spelling mistakes in legal writing not picked up by standard spelling checkers, like “statue” for “statute,” or “in areas” for “in arrears.” Woodpecker: especially for solicitors, helps you save, at the paragraph level, those template clauses and phrases you use most commonly, create questionnaire-based forms that allow you to draft commercial agreements and instruments quickly. Finally, for those lawyers on the Microsoft 365 system, Word Online allows them to draft in real-time with clients or others. No more multiple versions of emails being exchanged back and forth. Word processors are to lawyers as saws and hammers are to carpenters. Word processors are tools we use to realize our creative and analytical skills. When we can use our tools more skillfully, we can produce our products and serve our clients more quickly, efficiently, and effectively. Chilwin Cheng, principal lawyer at Ascendion Law. Criminal and Regulatory Defense, Complex Corporate and Commercial Disputes. Passionate about law and innovation. linkedin.com/in/chilwin. JUNE 2021 / BARTALK 23

communitynews TIPS FROM

RESOURCES TO BOOST YOUR SKILLS Good practice management resources are key to a well-managed practice and a wealth of resources on this topic can be accessed through Courthouse Libraries BC (“CLBC”).

CLBC’s precedent collection is vast and available to help you boost your efficiency. Don’t be shy about asking CLBC librarians for assistance if you’re struggling to find a resource. If you’re looking to build your client relations and business skills, take a look at CLBC’s practice management collection. A few recent additions to this collection include: The client-centered law firm: how to succeed in an experience-driven world, Trauma-informed legal practice toolkit, and The essential associate: step up, stand out, and rise to the top as a young lawyer. Through CLBC’s continuing professional development program, they provide ongoing learning opportunities for legal professionals. Go to CLBC’s webinar archive (bit.ly/bt0621-clbc1) to access recordings of skills-based training to help you improve client communication skills, plan for retirement, and enhance workflow with the use of precedents and top-notch legal research skills. If an unbundled practice is the way you want to go, be sure to check out the Unbundling Toolkit (bit.ly/bt0621-clbc2) on the CLBC website. Family law practitioners can sign up for the BC Family Unbundling Roster on the same page, allowing clients to easily find them.

CLEBC Update WATCH PART II OF THE WIDELY ACCLAIMED “BUT I WAS WEARING A SUIT” MINI-DOCUMENTARY The Honourable Madam Justice Ardith Walpetko We’dalks Walkem, with the support of the Law Society of BC and CLEBC, produced the powerful short film “But I Was Wearing A Suit,” which was presented at the Law Society of BC’s Truth and Reconciliation Symposium in November 2017. In this film, Indigenous lawyers tell stories exposing racism and bias in the legal profession (viewable here at cle.bc.ca/part1). That short documentary, now with over 16,000 views, concluded with the question: “If this is how Indigenous lawyers are

24 BARTALK / JUNE 2021

treated in the legal system, what does this say about how the legal system treats Indigenous peoples in general?” Part II of this documentary “Experiences of Indigenous Peoples Accessing the Justice System” has just been completed under the direction of Madam Justice Walkem and is a continuation of the grassroots project of a group of Indigenous lawyers, with the support of CLEBC, the Law Society of BC, and the Union of BC Indian Chiefs. The narrative for this documentary was provided by The Honourable Steven L. Point. To produce this video, personal stories were shared by many Indigenous peoples about micro-aggressions or micro-discriminations they suffered during their involvement in the legal system.

More than 50 people responded to the initial survey from which stories were selected to be included in Part II of the documentary. Those who were not comfortable sharing their stories in the video had their stories read by others to protect their anonymity. It is hoped that these videos will expand awareness of the microaggressions and micro-discriminations that are being suffered by Indigenous clients in the justice system, and encourage a muchneeded discussion about stereotyping and bias. We encourage you to view Part II of the video (cle.bc.ca/part2) and to share this link with your network.

professionaldevelopment

WEBSITE: CBAPD.ORG \ EMAIL: PD@CBABC.ORG \

PD On-Demand Catalogue — New & Improved Most of CBABC’s webinars are recorded for on-demand viewing — you can access them anytime from anywhere! Our updated On-Demand Catalogue has a new look, and more search and filtering options. Visit cbabc.org/on-demand-cpd to see these and more programs:

Dismantling Systemic Racism in the Legal Profession Dr. Lisa Gunderson builds on the foundational principles of antiracism, and delves into the larger concepts of systemic racism, equity, power/privilege and how they manifest in the legal arena. CPD: 1 Hour uuu bit.ly/bt0621pd-1

A Virtual Townhall with Chief Justice Hinkson on Virtual Courts Chief Justice C.E. Hinkson discusses the developments and workings in civil and family matters in the Supreme Court of British. CPD: 1 Hour uuu bit.ly/bt0621pd-4

The Art of Legal Coaching: A New Way to Provide Legal Services

Upcoming Section Programs

Experienced panelists explain legal coaching: how it came about, what it entails, and how to become a certified legal coach.

Annual Family Law Year In Review (2020-Now)

CPD: 1.5 Hours uuu bit.ly/bt0621pd-5

Getting to the Finish Line: Vaccination Policies for Workplaces

Chief Commissioner Marion Buller talks about the Calls for Justice and the inquiry into murdered and missing Indigenous women and girls.

This program addresses questions such as: Can employers require employees to be vaccinated? What are the Charter and human rights implications of vaccine requirements? And what, if any, obligations are placed on employers and employees as each province moves through its vaccination plan?

CPD: 1.5 Hours uuu bit.ly/bt0621pd-2

CPD: 1.5 Hours uuu bit.ly/bt0621pd-6

Broken Lives, Broken Dreams: The Devastating Effects of Sexual Harassment On Women in the RCMP

The Real Truth about Mental Health and Lawyers

Reclaiming Power and Place: The Final Report of the National Inquiry into Murdered and Missing Indigenous Women and Girls

Retired Justice Michel Bastarache, CC, QC explores the findings of the Merlo Davidson Report and the culture within the RCMP for women and LGBTQ2SI+ employees.

Sandra Cunningham, QC, Winston Sayson, QC, and Sandra Kovacs share personal experiences with mental health challenges while Derek LaCroix, QC explains the role of the Lawyers Assistance Program of BC and resources available.

CPD: 1.5 Hours uuu bit.ly/bt0621pd-3

CPD: 1.5 Hours uuu bit.ly/bt0621pd-7

Aaron Franks and Todd R. Bell present the latest extended installment of their venerable annual year-in-review covering all significant family case law updates from the last year and a half, from BC and beyond. Learn how these updates have shaped the law and how they will impact you when researching an issue, drafting an agreement, framing an argument, or tracking the latest legislative developments. Date: June 17, 2021 Time: 11:00 a.m. - 2:00 p.m. PT CPD: 2.5 Hours uuu bit.ly/bt0621pd-8

The Tough Court Day: Tips for Navigating Challenging Hearings Madam Justice Ahmad, Brook Greenberg, QC and Lisa Hamilton, QC share tips and tricks on how to think on your feet, navigate challenging days in court and recover from difficult hearings. Date: June 22, 2021 Time: 12:00 p.m. - 1:00 p.m. PT CPD: 1 Hour uuu bit.ly/bt0621pd-9

JUNE 2021 / BARTALK 25

nothingofficial TONY WILSON, QC

No shirt. No shoes. No shot. No service? Vaccine passports are the next wedge issue

y September 1, it’s projected that almost 950,000 Americans and 45,000 Canadians will have died from COVID-19, despite the rollout of vaccines that will lower the rate of transmissibility, sickness, and death. Yet some of the same people who continue to downplay COVID’s seriousness (comparing it to just a “bad flu”), claim that COVID fatalities are inflated because of other underlying health problems; the so called “comorbidities.” In other words, grandma may have had COVID, but it was really the hangnail that killed her. They challenge lockdowns designed to slow down transmissibility. They do their “research” on Google, YouTube, Tik-Tok, and Facebook proving the claim that social media has become a “dystopian hellscape where random goofballs speak confidently and authoritatively about topics they know nothing about.” Despite the unimaginable death toll in India, (and what COVID could have looked like without masks and lockdowns) these covidiots still rebel at mandatory masks in private businesses, and are often fired a day after their “anti-masker temper tantrum” appears on YouTube. Some of them deliberately have superspreader parties in their condos, disrupt rush hour traffic, and have forced ferries and aircraft to turn around. “We don’t need vaccines” many claim, while enjoying life without polio, tetanus, smallpox, diphtheria, and a host of other diseases they didn’t catch because of… vaccines. “We don’t know 26 BARTALK / JUNE 2021

what’s in them,” they say, after eating McNuggets and hot dogs much of their lives. Without any reliable evidence, they claim Ivermectin (a treatment for parasitic worms in horses and humans) treats COVID better than vaccines. Yet, we are all “Sheeple” because we follow the directives of Dr. Bonnie Henry and other health professionals. The newest wedge issue is the potential for vaccine passports. As far as international travel is concerned, those who object to them have obviously never travelled internationally or obtained a real passport. Many countries in Africa still require vaccination certificates for yellow fever. So, if you don’t want to go to Mozambique because you have to be inoculated for yellow fever, then don’t go there. It’s your choice. But what if a domestic business requires proof of vaccination before it will let a customer eat at their restaurant or shop in their store? Can they? Should they? Well, if somebody chooses not to be vaccinated, that’s their choice, isn’t it? It’s a free country. They can choose not to be vaccinated and roll the dice with Darwin and live with the consequences. Or not. But because it’s a free country, and refusing to serve those who refuse to be vaccinated isn’t discrimination under the Human Rights Code, why shouldn’t a private business, like a bar, restaurant, or shop, have the

right to insist on the production of a vaccine passport and refuse entry to those who don’t? No shirt. No shoes. No Shot. No Service. Although the governor of Florida has banned private businesses from requiring proof of vaccination from patrons, the better answer is to let individual businesses make the decision to require vaccine passports, or not. Those businesses that require them may get more business. And those that don’t may also get more business (or patrons will avoid them like the plague, so to speak). The market will decide. But there are always devils in the detail. Should you deny service to immuno-compromised persons who can’t receive a vaccine? Can you deny access to a public institution, like a university, school, or government office, to a citizen who refuses to produce a vaccine passport? Will there be a cottage industry in fake vaccine passports? Can you fire an employee who refuses to be vaccinated? Will other provinces emulate Florida and allow a business to refuse service to those without shirts and shoes, but not shots? This will keep lawyers busy for some time. Tony Wilson, QC is a Life Bencher of the Law Society, a Vancouver Franchise Lawyer, humourist, self-professed thought leader and all-around raconteur. Consequently, the views expressed herein are his alone and do not reflect the opinions of the Law Society, the CBABC, or their respective members.

grantsapproved LAW LAWFOUNDATION FOUNDATIONOF OFBRITISH BRITISH COLUMBIA COLUMBIA

Outlined below is a list of grants recently approved by the Board of Governors. Funding totalling $8,180,500 was approved for the following 49 Continuing and OnTrack programs: $960,000 Community Legal Assistance Society Major Programs $470,000 West Coast Environmental Law Association Access to Justice Programs $468,000 Access Pro Bono Society of BC Major Programs $400,000 BC Law Institute Program Grant $385,000 Justice Education Society of BC Major Programs

$150,000 People’s Law School Society Dial A Law Operating Grant

Sources Community Resources Society Terrace and District Community Services Society Wachiay Friendship Centre Society

$142,500 Access Pro Bono Society of BC APB Lawyer Referral Service

$95,000 to each of the following family law programs: Battered Women’s Support Services Kamloops and District Elizabeth Fry Society Maple Ridge/Pitt Meadows Community Services Quesnel Tillicum Society SHARE Family and Community Services University of Victoria Wachiay Friendship Centre Society

$105,000 Community Connections Society of Southeast BC East Kootenay Poverty Law Advocacy Program $100,000 PovNet Society PovNet Program $100,000 University of Victoria Access to Justice Centre for Excellence $100,000 West Coast Prison Justice Society Human Rights, Charter and Health Care Initiative $95,000 Watari Research Association System Negotiator Program $80,000 Upper Skeena Counselling & Legal Assistance Society Legal Advocate Program $70,000 Mediate BC Society Public Education Program

$380,000 West Coast LEAF Association Litigation and Law Reform

$60,000 Community Legal Assistance Society David Mossop, QC Public Interest Articling Fellowship

$370,000 People’s Law School Society Major Programs

$55,000 University of Saskatchewan Indigenous Law Centre

$345,000 Immigrant Services Society of BC Immigration and Refugee Legal Clinic

$40,000 Kinbrace Community Society Accessing Refugee Protection

$280,000 Tenant Resource and Advisory Centre Society Tenant Legal Advocacy Program $250,000 Environmental Law Centre Society, University of Victoria Environmental Law Centre Clinic Program $250,000 Ki-Low-Na Friendship Society knxit i? snqsilxw | Help the Relatives: Poverty Law Clinic $220,000 Seniors First BC Society Elder Law Clinic $190,000 Pivot Legal Society Homelessness and Police Accountability Programs $150,000 Migrant Workers Centre BC Society Migrant Workers Centre Legal Advocacy Program

$30,000 University of British Columbia LSLAP For-Credit Program

Funding totalling $844,000 was approved for the following the Major Projects Initiative: Fetal Alcohol Spectrum Disorder Society for British Columbia Increasing capacity to identify and support individuals with FASD and complex neurodevelopmental needs in British Columbia Funding totalling $ 936,000 was approved for the following Public Interest Articling Grants and hirebacks. BC Civil Liberties Association BC Law Institute Disability Alliance BC Society Ecojustice Canada Society Immigrant Services Society of BC Kamloops and District Elizabeth Fry Society Migrant Workers’ Centre BC Society Sources Community Resources Society Together Against Poverty Society West Coast Environmental Law Association West Coast LEAF Association West Coast Prison Justice Society Funding totalling $101,500 was approved for seven Law Foundation Graduate Fellowships. Funding totalling $244,800 was approved for the following five other grants:

$25,000 Nicola Valley Community Justice Services Society Indigenous Court Coordinator Program

$99,800 Legal Aid BC — LSS/LF Research Grant

$10,000 University of British Columbia Indigenous Legal Studies Academic Leadership Certificate

$85,000 Society for Children and Youth of BC

$95,000 to each of the following poverty law programs: Atira Women’s Resource Society Dze L K’ant Friendship Centre Society Maple Ridge/Pitt Meadows Community Services North Shore Community Resources Society Okanagan Advocacy and Resource Society Quesnel Tillicum Society Seniors First BC Society SHARE Family and Community Services Shuswap Family Resource & Referral Society Sources Community Resources Society

Indigenous Women’s Legal Needs Assessment

Child and Youth Legal Centre Provincial Roster Expansion Project $35,000 Atira Women’s Resource Society Access to Justice Through Legal Incubation $15,000 Level. Changing Lives Through Law Indigenous Youth Outreach Program $10,000 Public Interest Law Participation Band Members Alliance and Advocacy Association

JUNE 2021 / BARTALK 27

barmoves Who’s Moving Where and When

Bar Moves space is at a premium and available for free to members on a first-come first-served basis, so send your Bar Move (max. 30 words) and a high-resolution headshot photo to bartalk@cbabc.org now.

TO VIEW ALL BAR MOVES GO TO CBABC.ORG/BARMOVES.

Natanya Garcia

Yaro Gavrylko

has moved her technology and corporate commercial practice to Synergy Business Lawyers LLP.

has moved to Fleetwood Family Law where he continues practising family law serving clients in Surrey, Tri Cities, Ridge Meadows, and Metro Vancouver.

Katherine Pintye

Lori Massini

an experienced family law lawyer, has joined Spraggs Law in Coquitlam. Katherine has a history of success representing clients in all matters relating to family law.

joined EKB as associate counsel. She practises entertainment law, and represents film producers and studios to guide them through the legal process of film and television production in Canada.

Benton Mischuk

Tarlan Razzaghi

joined MKS Immigration Lawyers as associate counsel. Benton will continue practising in Victoria, with a focus on assisting employers, professionals and entrepreneurs to find immigration solutions.

joined Mandell Pinder LLP as an associate. Tarlan advises Indigenous communities on consultation and regulatory processes for energy developments and represents them before courts and tribunals.

Jada Tellier

Robin Dean

joined Mandell Pinder LLP as an associate, where she will apply her experience in real property law to advise Indigenous communities on land matters, on and off reserve.

joined Mandell Pinder LLP as an associate. Robin advises Indigenous communities regarding the recognition & protection of their rights, governance, and stewardship of natural resources.

Lauren Frederick

Hammerco Lawyers LLP

joined Edwards, Kenny & Bray LLP as an associate. Lauren practises corporate commercial law with a focus on financial institutions, mergers and acquisitions, and privacy issues.

has moved to a new office location: 400-2233 Columbia Street, Vancouver, BC V5Y 0M6

28 BARTALK / JUNE 2021

When Kamiah’s world gets turned upside down, help her stay strong.

A Will can help do that. What if you could help your clients create a legacy where fewer children suffer from illnesses? When you help your clients leave a gift in their Will to BC Children’s Hospital Foundation, you’re empowering them to do just that. Discover how you can help your clients leave a legacy. bcchf.ca/legacy-advisor Hilary Beard, Gift & Estate Planning 604.875.3679 hbeard@bcchf.ca

Hakemi & Ridgedale LLP is pleased to announce the addition of associate Or Regev to the firm, and articled student Farnaz Karimi. Following Ms. Karimi’s call and admission to the bar in August 2021, she will take a position in the firm as an associate. Mr. Regev and Ms. Karimi will bring much value to our established commercial litigation practice in downtown Vancouver.

502 – 815 hornby street, vancouver hakemiridgedale.com | 604.259.7678

Scarborough Herman Bluekens Joins Watson Goepel’s Personal Injury Team A new partnership brings enhanced legal services watsongoepel.com JUNE 2021 / BARTALK 29

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BarTalk June 2021 | Practice Management

Articles inside

A Tool Every Lawyer Has, Few Know How to Use Well

Representing Clients with Capacity Issues

Why Deal Mediation?

Tips and Considerations for Managing Pro Bono Work

Don’t Shoot Yourself in the Foot (or the Wallet

SectionTalk

Unconventional Law Firm Design in a Virtual World

Sometimes It’s Not So Obvious

Moving Away from Hourly Billing

Unbundled Law in a Gig Economy

In-House Legal Practice Management

Managing Change in a No-Fault Environment

Stripped

Advocacy in Action

Practice Management

Fundamentals of Labour Arbitration Practice