BarTalk February 2023 | The Legal Trade

Are your contributions undervalued?

Want to keep up to 80% of your billings, practicing what you love?

From anywhere in BC! In any practice area! Grow with MacIsaac & Company! In person or remotely!

Contact managing partner Erik Magraken, in confidence, to learn more about MacIsaac & Company’s 80% Associate Counsel Career! emagraken@macisaacgroup.com

More details at: www.macisaacandcompany.com/associate-counsel

The Legal Trade

FEBRUARY 2023

Volume 35 | Number 1

Columns

From the President

4 The Innovative Legal Practice

Aleem Bharmal, KC Executive Director

5 The Journey of Reconciliation in CBABC

Kerry L. Simmons, KC PracticeTalk

18 The State of the Legal Biz

David J. Bilinsky Nothing Official

29

Isabel Jackson, Committee Chair

Editorial Committee

Tonie Beharrell Eryn Jackson Demola Okeowo Lily Zhang

Brandon Hastings Judith Janzen Josephine Wong

Deborah Carfrae, BarTalk Editor

Staff Contributors

Alyssa Brownsmith Travis Dudfield Carolyn Lefebvre Sanjit Purewal

Michaela David Sylvie Kotyk Valerie Le Blanc

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 7,600 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

t: 604.687.3404

tf: 888.687.3404

e: bartalk@cbabc.org

© Copyright 2023 The Canadian Bar Association, BC Branch

BarTalk Publication Sales Agreement #40741008

FROM THE PRESIDENT

ALEEM BHARMAL, KC

The Innovative Legal Practice

It goes without saying that the present rate of technological change is breathtaking and only accelerating. The potential implications for the business of law are deep and wide-ranging. The pandemic forced many law firms to innovate quickly and use technological tools and platforms that were new to them. The challenge will be to effectively assess those changes and continue to utilize what works and jettison what doesn’t, all while trying to keep up with the increased pace of innovation (no small feat!).

THE VIRTUAL OFFICE

One area of practice most affected by the pandemic, of course, was legal service delivery, with the dramatic increase in the provision of virtual services, including through electronic signings, meetings, mediations, and hearings. This move went hand-in-hand with the dramatic increase in virtual office working hours for lawyers. The convenience and cost-effectiveness of all this was obvious.

That said, some law firm partners we spoke to, while acknowledging the clear benefits of these developments, lamented the missed mentoring opportunities, camaraderie, and intangible advantages gained by everyone physically working together. As one managing partner put it, he felt like someone desperately trying to “get the band back together” in shifting his firm back to a more balanced hybrid work culture.

MODERNIZING LEGAL FEES

A more long-standing area of innovative legal practice study has been the search for viable alternative legal fee arrangements and the move away from the ubiquitous “billable hour.” The disadvantages of the “billable hour” have long been cited, including a built-in financial incentive toward inefficiency as well as significant cost uncertainty for the client. A commonly used critical analogy is that you wouldn’t tell a potential car-buying customer that the cost of their purchase will depend on how long it takes to build their vehicle, which can only be roughly estimated.

Digby Leigh previously wrote in BarTalk about alternatives to the “billable hour” fee model, such as market cost and value-added billing (bit.ly/bt0223p1). The former essentially involves figuring out what to offer as a fixed price for more standardized legal projects, even complex ones, with enough room to account for some unforeseen contingencies. While the latter involves listening to clients carefully to determine what a firm might potentially charge for the successful value-added services they are able to provide — both methods financially incentivize efficiency and excellence.

NEW LAW FIRM STRUCTURES

A further area to consider for innovation is the law firm structure itself. Is the traditional partnership / associate model still the best way to go? Does the increased technological ability to deliver legal services virtually allow for more innovative ownership structures that might better work for both lawyers and clients? What about incorporating different business professionals into the mix, beyond the expected newly defined professional classes of notaries and paralegals, potentially coming our way under the same single regulator? How about the modernization of the reporting structures, management teams, and even compensation arrangements of the traditional law firm?

It is generally accepted that we are likely to see (in fact, it’s happening already) a more diverse legal market driven by the forces discussed above, including the aforementioned breathtaking pace of technological change (we haven’t even touched on AI!). This issue will delve into many of these areas and you can rest assured that CBABC will continue to be on top of it all, providing the cutting-edge information you need to make your way successfully in this brave new legal world.

Aleem Bharmal, KC president@cbabc.org

EXECUTIVE DIRECTOR

KERRY L. SIMMONS, KC

The Journey of Reconciliation in CBABC

We’re excited to share that CBABC’s second Reconciliation Action Plan for 2023-26 has now launched. Following the inaugural plan of September 2018, we have been on a journey to bring knowledge, opportunities, and support to all members as they took up the call to learn more about Indigenous peoples in Canada, their experiences, and the reforms that are much-needed to right past wrongs.

Over the past 18 months, our Truth & Reconciliation Committee engaged with members in small groups to discover what has changed for lawyers since our first Action Plan and what is now needed. Indeed, in the seven years since the Truth and Reconciliation Commission of Canada issued its report in 2015, there have been other reports, the introduction of the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”), election of five Indigenous benchers at the Law Society, a required Indigenous intercultural course, Reconciliation Response Plans implemented in several firms, and record-setting attendance at the Aboriginal Lawyers Forum Holiday Banquet and annual retreat.

CBABC has reported on its work in its Annual Reports and will continue to do so under this next Action Plan. Our work under the Action Plan is shared by CBABC staff and volunteer members, including the Board of Directors, Aboriginal Lawyers Forum, Truth & Reconciliation Committee, and Indigenous Justice Advocacy Committee.

In developing the Action Plan, CBABC established Guiding Principles to express our collective understanding and commitment to an evolving journey. These are:

We are guided by the Calls to Action issued by the Truth and Reconciliation Commission of Canada, the Calls to Justice issued by the National Inquiry into Missing and Murdered Indigenous Women and Girls, and the lessons from ongoing and future developments.

We are guided by the principles embodied in the UN Declaration on the Rights of Indigenous Peoples and BC’s Declaration on the Rights of Indigenous Peoples Act.

We acknowledge with regret the significant harm to Indigenous peoples resulting from the roles the legal system and the legal profession played in the implementation and enforcement of laws and policies in Canada.

First Nations, Métis, and Inuit members of CBABC are instrumental in establishing and implementing the Reconciliation Action Plan.

Our commitment is ongoing, and we will allocate resources to implement these goals over the short, medium, and long term. We will work proactively with other institutions to avoid duplication and coordinate efforts to effectively leverage human and financial resources.

There are four clear goals for CBABC in the Action Plan:

1. To provide Indigenous cultural awareness professional development for our members.

2. To encourage and create environments for Indigenous lawyers to be welcomed, feel supported, and

have opportunities for advancement in the legal profession.

3. To develop and advocate for law and policy reform to achieve meaningful change for Indigenous peoples in justice, policy, implementation of DRIPA, and regulation of the legal profession.

4. As an association, to reflect principles of reconciliation in our governance and operations. The Truth and Reconciliation Commission defined reconciliation: “[It] is about establishing and maintaining a mutually respectful relationship between Aboriginal and nonAboriginal peoples in this country. In order for that to happen, there has to be awareness of the past, an acknowledgment of the harm that has been inflicted, atonement for the causes, and action to change behaviour.” It is this last element, “action to change behaviour,” which CBABC has, and will continue, to promote in its membership and among its staff. The journey of reconciliation is complex and requires unlearning and learning. Each of us is at a different stage and CBABC wants to meet each member at the place in your journey where you are. With the launch of our Action Plan, you can navigate our website to continue that journey. (bit.ly/bt0223ed1)

Kerry L. Simmons, KC ksimmons@cbabc.org

How Diversity Makes Good Business Sense

Adiverse workplace is an asset that provides short- and long-term dividends for at least two reasons; client development and recruitment, and retention of skilled staff.

First, regardless of whether the firm is focused on institutional or individual clients, clients are increasingly diverse. As such, a firm that has a strong diversity policy is better positioned to market itself to retain or expand its clientele.

Second, a firm with a robust diversity policy is more attractive to talent.

DIVERSITY IS A PILLAR OF BUSINESS DEVELOPMENT

Both Merriam-Webster and Oxford Dictionary define “diversity” as including people that are “different,” or more specifically, different “from each other.” Diversity in the workplace includes equality and inclusion of staff from different backgrounds, including different races, gender, religion, and sexual orientation.

However, diversity done well goes beyond simply including persons of different backgrounds to appreciating the strengths and the value these distinguishing features add to the firm.

Hiring staff with diverse backgrounds puts firms in a position to market to and connect with

diverse clients. A diverse background ensures your teams are better able to recognize the nuances of how diverse markets conduct business, and what that means in terms of litigation risks, availability of witness and documentary evidence, and practical wrinkles that may be a barrier to dispute resolution.

For example, as a trilingual commercial litigator, one of my distinguishing features that I have focused my marketing on is my fluency in Cantonese and Mandarin, both orally and written. In many ways, I have focused my marketing on how I am different, and how these differences are assets. Some examples of this include applying those skills to develop oversea connections, understanding records in those languages, and attracting clients that prefer a litigator that speaks their language.

As such, diversity done well is recognizing how each person’s different background brings something more to the table, whether that be a different perspective or subject matter expertise in a particular market.

A diverse firm reflects that the clients we serve are not homogenous. A focus on diversity is in many ways a focus on expanding and deepening a firm’s toolbox in connecting with and providing value to our clients.

DIVERSITY IS CRUCIAL IN HIRING AND RETAINING SKILLED STAFF

A robust diversity policy is crucial to attract the talent necessary to broaden the firm’s toolbox. In that respect, it applies both ways — from the employer perspective, it increases the firm’s access to a larger pool of skilled staff. Just as how the clients we serve are not homogenous, neither are the persons we need to provide services to our clients. Absent a policy and culture that appreciates the importance of a diverse workplace, a firm risks falling behind and unable to attract talent.

Candidates are increasingly interested in how a firm is inclusive. For example, some questions I have commonly been asked by candidates include questions ranging from my comfort level being “out” to coworkers, to whether I felt that there were sufficient or equal career advancement opportunities despite my differences. These types of questions reflect that the extent to which a firm has a culture of diversity and inclusion is a factor considered by candidates.

CONCLUSION

A diverse workplace is an important asset that permeates both internally and externally, from firm culture and recruitment to client management and development. Beyond being the right thing to do, it is the economically smart thing to do.

Diversity is an asset that adds value both in business development and recruitment

Nicole Chang is the co-chair of Whitelaw Twining’s Diversity, Equality, and Inclusion Committee, and an Executive Member of the CBABC Women Lawyers Forum.

Where’s the Remote Control?

The COVID-19 pandemic has ushered into the world a number of irreversible changes: the normalization of mask wearing, the formerly foreign concept of social distancing, the unprecedented use of the word “unprecedented” outside of legal circles, and the ability of individuals (who are able) to work remotely or from home.

REMOTE WORK PRE-PANDEMIC

Pre-pandemic, although remote work was possible, it appeared to be the exception to the general rule that a worker ought to be in the office and at their desk during regular business hours. Within the legal industry, this held true for not only lawyers, but paralegals and office staff as well, with the notion of being physically present in the office for work simply serving as an unquestioned expectation. This all changed with the advent of the pandemic in early 2020, which produced a radical shift away from this assumption and necessitated that firms establish technological infrastructure to allow individuals to work from home in order to ensure that office operations could continue and that the health and safety of workers could be protected.

REMOTE WORK POST- PANDEMIC AND FIRM ACCOMMODATIONS

Although many pandemic related restrictions have since attenuated, remote working or working from home has endured as a common practice for many lawyers, either

in a full-time or part-time capacity. Different firms will have their own policies on working from home, but anecdotally, it appears that most firms have continued to recognize the value in permitting lawyers and other workers the flexibility to work remotely. In the result, it is now common for firms to offer creative accommodations that not only benefit individual workers but the business of the firm as well. Some examples of these accommodations include:

„ Office sharing arrangements in which two or more lawyers share a space and co-ordinate a schedule regarding who works remotely and who attends in-office on each day of the week, which allows flexibility in the form of a partial remote work week while ensuring that the use of physical office space is maximized

„ The creation of hoteling offices, which are neutral and flexible workstations equipped with the amenities of a regular office but capable of being used by anyone. These spaces can also function as a remote/office share worker’s dedicated space in the event that they are preparing for a hearing or trial.

„ The firm-wide adoption and use of technology, like firm laptops and videoconferencing software to further reduce barriers to working

from home and encouraging greater networking and collaboration.

„ Incentivizing workers to attend inoffice by providing perks such as parking or transit reimbursements, hosting catered lunch-and-learns/ seminars, or promoting participation in team building or practice group activities.

„ Offsetting concerns regarding a deterioration in workplace culture and morale by requiring workers to attend in-office for a minimum number of days per week.

REMOTE WORK IS HERE TO STAY

All technological advances bring with them both benefits and drawbacks, and the ability to work remotely is no different. Within the legal industry, there are proponents of remote work who champion it as the long overdue solution to achieving greater work/ life balance by allowing for the substitution of commutes and water cooler talk for more time spent with family or friends; however, there are also others who correlate the rise in remote working with a decline in workplace productivity and culture.

Regardless of where you find yourself in this ongoing debate, it is clear that the genie is out of the bottle and some form of remote working is here to stay. Therefore, the challenge for firms and employers is attempting to strike an appropriate balance between accommodating its lawyers and workers while, at the same time, ensuring that meaningful connection and firm culture are preserved.

For better or worse, the age of remote work has arrived and is here to stay

Andrew Tang is an associate at Harper Grey LLP practising in the areas of health, professional regulation, and securities law.

CYNTHIA LAM

The Evolution of Leadership in Law Impact

on lawyers and law firms

As we recover from the COVID-19 pandemic, organizations are recognizing the importance of workplace culture and placing a larger emphasis on employee wellbeing and connection. For a law firm, this ultimately requires a shift from the conventional focus on billables to a more people-oriented approach.

Although there may be an impact on the bottom line at the beginning, making the investment to nurture your people will allow you to reap the benefits in the long run. Happy, fulfilled, and engaged employees are more likely to go above and beyond — they are more productive, better team players, and committed to the success of the business. Not to mention, the energy and optimism of a single individual can lead to a ripple effect throughout the organization.

For this to be sustainable, a firm needs to harness and foster these positive effects. Established parameters are required to maintain a consistent environment and experience for everyone who works at the firm — the parameters being the firm’s mission, vision, and values. The essence of how the firm operates and interacts with its people and clients within those parameters is the firm’s “culture.”

A firm with a strong culture is one where the firm’s actions and

interactions are aligned with its mission, vision, and values. A strong firm culture allows people to be clear on what to expect and how they should act. It allows people to derive meaning from their work and feel like they are contributing to the firm’s goals. All of this helps build loyalty.

So, what does this mean for lawyers and the legal profession going forward?

Despite the path paved by start-ups and tech companies, most law firms have been reluctant to “do things differently.” At least they have been for a long time. As new generations of workers enter the legal industry, associate lawyers and support staff are starting to prioritize meaningful work, flexibility, and opportunities for growth over compensation. With the power dynamic shifting as a result of the current job market, firms will need to adjust instead of pushing back against social change.

What many law firms are realizing is that people management is no longer just an HR problem, it is also a leadership problem. Real buy-in only follows when the leaders of the firm walk the talk. The strength of a firm’s culture is underwritten by the words and actions of those in leadership positions.

The leaders of the firm set the tone for everyone else. They have the responsibility of embodying the firm’s standards and expectations, the opportunity to reinforce good behaviour and not tolerate bad ones, and the privilege to inspire and motivate their team.

While not by choice, the natural workflow in most firms requires lawyers to step into a manager role, making them leaders by default. For a firm to uphold a defined culture, there needs to be cohesiveness on all levels. The lawyers of a firm need to learn what it means to act in alignment with the firm’s parameters and there needs to be follow through.

With talent retention becoming more of a concern, a lawyer’s ability to practice compassion, empathy, and collaboration as a leader will be just as valuable to an employer as competence, knowledge, and expertise. Not to mention, as the popularity of hybrid and remote work continues to rise, adaptability and clear communication skills will be vital for lawyers to succeed, both in the workplace and with clients.

As the practice of law evolves, firms that want to maintain business success by cultivating a strong workplace culture may want to re-evaluate their recruitment and training strategies. Skills that were once considered “soft” and nonessential for lawyers may prove to be real assets.

Cynthia Lam is a lawyer and owner of GBC Law, and a director of the Burnaby Board of Trade. linkedin.com/in/cynthia-lam-43216837

CBABC BRANCH AWARDS NOMINATIONS

OPEN

Is someone you know an exceptional member of your community? Do they support values of equality and diversity? Work towards innovation? Support others through pro bono service? Elevate these accomplishments with four BC Branch Awards.

cbabc.org/BranchAwards

Are Law Firms the Dispute Resolution Shoemaker’s Children?

Lawyers and law firms frequently help clients create structures to address and resolve conflict, whether between the client and other persons or internally within the client itself. In doing so, we are conscious to encourage the client to go beyond simply addressing their legal rights and obligations, and to take into account broader business considerations such as commercial and employee relations or broader public profile.

Of course, law firms are just like other organizations in that they do from time to time experience their own conflicts both externally (clients or other counterparties) and internally (with employed lawyers and staff, and between partners and the firm). While it might be expected that firms would be at least as good at organizing their own affairs as those of their clients, arguably this is not always the case. Just as for clients, lack of effective conflict management policies and practices can expose firms to significant economic and reputational risk. A few hypothetical examples may demonstrate the issue. (As said in the media-world, “Any resemblance to actual individuals, living or dead, is entirely coincidental.”)

„ A senior partner uses language and makes the kinds of jokes that seemed to entertain at least some of his colleagues in the 1970s and 1980s. These now cause offence/ cringe reactions amongst most

lawyers and staff. Some raise the issue with the “reporting partner” for such matters. They are told, “I hear you, but that’s just him, he’s always been that way. He’s harmless.” And nothing is seen to change.

„ Two partners in a medium-sized firm practice in closely adjacent fields, such that many of their matters could reasonably be handled by either. While they are somewhat cordial to each other when in the same room, in conversations with other firm members each speaks dismissively (and perhaps disparagingly) of the other.

„ None of the partners in a small but successful practice group participate in the decision-making process for allocation of firm earnings. The most senior of the practice group partners goes for lunch with the firm’s managing partner to raise their concerns, and is told, “I hear you. I’ll be sure to take these concerns into account in next year’s allocation.” The firm’s remaining partners feel betrayed when six months later the practice group decamps for a rival firm across the street.

Why do these scenarios continue to arise (because they certainly do)? Is it because the firms in question have

not formulated processes to allow conflicts to be addressed in a collaborative, restorative and measured manner, or (worse) have formulated such processes but fail to follow through when issues arise? When the only approach that is practically available is seen as a “nuclear alternative” (e.g., a public human rights complaint, the formal expulsion of a partner from the firm, or other groups splitting off and the firm ultimately dissolving), individuals and firms often choose to avoid and defer rather than to act, thereby allowing conflicts to fester.

How can law firms address the “avoid or blow it all up” situation? When advising a client, we would recommend (and probably help draft) mechanisms for initiating early internal conflict resolution processes, which include paths that are explicit (not just unwritten understandings), that are consensual (at least in their initial phases), that engage open communication among all relevant players, and that are actually followed even in what are seen as the “hard cases.” If this is good for our clients, why not our own firms?

This article is necessarily too short to do more than identify the issue and point to possible approaches to solutions. Hopefully this will serve as a prompt: don’t wait for the conflict to arise before designing a process — address the potential need now, and make a formal written commitment.

MARK MEREDITH

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

TIPS FROM

CLBC: A Boon to Your Law Business

The business of law differs remarkably from one practice to the next, but all BC lawyers have access to the inherent cost-savings of Courthouse Libraries BC (“CLBC”). CLBC reference librarians offer free research assistance (inperson, by phone, or by email), and reliable document delivery of excerpts from our print collection sent directly to your inbox. Our broad collection of borrowable books and other print materials can be loaned and returned for free via mail (we call it our “book in a box” service). This means even a rural law practice will benefit from our more centralized collections in the major urban centres. And while almost every lawyer knows that CLBC in-branch public access computers come loaded with premium databases like LexisNexis and Westlaw, apparently very few of you know that CLBC has 30 branches in courthouses across the province… yes 30, ranging from Cranbrook to Prince Rupert, from Duncan to Fort St. John. And there are still lawyers who don’t realize that we offer a selection of subscriptions to products like HeinOnline (which contains over 1500 law journals plus digital access to more than a century worth of historical legislation) that you can log in and get from anywhere you have a device and internet access. Simply register a user account on our website, couthouselibrary.ca, and select the “Remote Access to Subscription Databases” option. If you’re a BC Law Society member, you qualify.

Basically, CLBC have the means to make a real difference for your law business, saving you time and helping your bottom line. And we’re not just talking about legal information budgets. CLBC’s popular no-cost webinars provide thousands of CPD hours to lawyers each year. Reach out to CLBC to learn more about our services and how we can help you in ways you may not have realized.

Legacy gifts matter

“... They made me feel like I wasn’t so alone in this.”

Lawyers, trust companies and other professional advisors trust our estate litigation group‘s commitment to understanding their clients’ motivations, nuanced family dynamics, emotional costs and the many other non-financial factors that inevitably come into play in an estate dispute.

By combining a deep knowledge of estate law with a culture that prioritizes excellence and client service, we‘ve earned our reputation as the preeminent estate litigation group in the Fraser Valley. Now, the addition two new partners in that group makes our team one of the deepest in Metro Vancouver.

Reach us at hamiltonduncan.com

MICHAEL BUTTERFIELD

Small Practice Marketing

Large practices have the advantage of being able to spread the cost of marketing across a large number of lawyers and paralegals, all of whom are generating revenue. For small practices, it can be challenging to maximize your available time and money.

The starting point of any marketing campaign is to determine the goal of your marketing campaign. Do you want to increase brand awareness or do you want to generate specific leads? You will also need to decide to whom you are wanting to market. The two main areas are professional contacts and the general public.

Your marketing goals should be part of your business plan. You will need to determine your revenue targets, expenses, and business structure. Many practices run into difficulty because they do not allocate sufficient time or money to marketing.

BRANDING

When targeting other professionals, networking plays a significant role in marketing. The goal is to meet as many target professionals as possible and have them associate a positive memory with you.

The Canadian Bar Association is an excellent networking opportunity. Being involved in CBA Sections or attending training opportunities can create significant networking connections.

When networking, it is essential to make it clear that you are taking new referrals. If you are networking with senior lawyers, you can ask them

for referrals. When marketing to the general public, joining organizations such as the Chamber of Commerce, church groups, and sports associations can create opportunities.

Promoting your brand to the general population is accomplished by plastering your name in as many locations as possible. Ideally, your branding efforts should be paired with a positive association. Sponsoring a local charity or sports team can be a very costeffective way of creating those associations.

Marketing professionals often talk about the Rule of 5/95. At any given time only 5% of consumers have the desire to purchase your product. The goal of branding is to have your business at the top of people’s minds when they decide they need your services.

For example, Coca-Cola does a lot of repetitive advertising. The goal of that advertising is not to get you to go out and buy a Coke immediately. Rather, the next time you are feeling thirsty the first thing you think of is a Coke.

LEAD GENERATION

The starting point for any lead generation is to determine the specific product that you wish to sell. It is a lot more expensive and time-consuming to promote all of your services than it is to promote specific services.

Lead generation is targeted at the 5% of the population that need your product at a given time. These ads need to represent value and imbue a sense of urgency. For example, one effective family law advertising campaign encouraged consumers to “act now before the new Divorce Act comes in.” This was coupled with a value offer of $1500 for a desk order divorce.

When advertising specific services, you can either advertise loss leaders or high-profit services. A loss leader is a service that you provide, potentially at a loss, in order to draw clients to your practice.

This approach can be very effective when using online tools such as Google ads and Facebook. These tools provide excellent tracking, but do require a clear understanding of the programs.

VISIBILITY

The best marketing plans can fall apart if clients are not able to find you. Having a decent and wellorganized website is essential. Ensuring that when clients contact you you respond immediately is also important. A potential client may be going through a list of lawyers and if you did not respond to them promptly, they simply go on to the next one.

Office procedures and practice software such as Clio Grow, which quickly responds to intakes, can maximize your chances of converting a lead into a client.

Michael Butterfield is a Victoria-based lawyer and mediator. Prior to the law he was a journalist, publisher, and served on the board of a national advertising agency.

Winter 2022 Meetings

— Recap

CBABC Sections hosted over 100 meetings and socials in the fall of 2022 and now 2023 is off to a strong start! With a wide variety of online, hybrid, and in-person activities, there is no shortage of opportunities to keep current in your practice area and connect with fellow members.

EMPLOYMENT LAW: AN UPDATE ON RESTRICTIVE COVENANTS

September 28, 2022

In September, the Employment Law Section hosted a meeting for over 150 members to hear about the enforceability of noncompete and non-solicitation clauses. Matthew McCarthy, Boughton Law Corporation, and Kristina Draskovic, Harris & Co, reviewed criteria applied by the courts when assessing the reasonableness of a restrictive covenant, and applied a comparative lens to explore how key developments coming out of Ontario courts stand alongside developments in BC. The 1.5-hour session capped off with a list of best practices for how to get a handle on enforceability in your practice

WILLS & TRUSTS—VICTORIA:

E-WILLS UNDER WESA S 35

November 7, 2022

One of our highest-attended meetings last term, with over 200 registrants, was hosted by our Wills & Trusts—Victoria Section. Hana Felix, Island Law

Offices, led a discussion on the opportunities and pitfalls of e-Wills under Wills, Estates & Succession Act. Drawing from recent changes to WESA section 35, Hana shared insights on the characteristics of e-Wills, including forms, presence, and signatures. Using sample scenarios and live input from the audience, Hana responded to the issues and concerns facing members today, including risk, security, probate, storage, and the impact of changes in technology on this new practice approach.

REAL PROPERTY: NO ‘COOLING OFF PERIOD’ FOR RESIDENTIAL TRANSACTIONS

December 14, 2022

To cap off a successful term, the Real Property Section invited Edward Wilson and Brendan Craig, Lawson Lundell LLP, to prepare over 150 real property members for the impact of recent amendments to the Property Law Act and a new regulation that created a new homebuyer rescission regime in BC. These changes, which came into effect in January 2023, apply to contracts of purchase and sale for residential real property, and introduce a statutory right for a buyer to rescind an offer within a short period of time after acceptance. Edward and Brendan examine the scope and limitations of the new terms, including how to manage the “break fee,” new standard form contract provisions and related issues.

uuu Want the latest meetings and events schedule for your Section? Bookmark

cbabc.org/events and update your Sections enrollment so you don’t miss out! Also, catch up on missed PD content for your practice area by visiting our Sections recordings at cbabc.org/Sections-and-Community/About-Sections.

IMMIGRATION LAW UPDATE

The Immigration Law Section & Overseas and Refugee Lawyers Groups had a strong start this year, having collectively hosted 10 Section meetings and events between October and December 2022! We welcomed over 300 of our Section members from across BC to share knowledge and build connections.

Looking ahead to the line-up of 2023 meetings and events, we are excited to add to our regular meeting schedule a return of a full-day of in-person learning and networking at our Annual Immigration Law Conference! The Conference Planning Committee has created an excellent program that will feature a panel of experts to discuss topics ranging from non-immigration issues for immigration lawyers, mastering Family Class Permanent Residence applications, to a review of notable cases. Space is limited, so register today!

uuu cbabc.org/Immigration

Immigration Law Conference | March 3, 2023 | Pinnacle Hotel Harbourfront, Vancouver

A feature of the conference that we are proud to offer again this year is the opportunity for early career lawyers to apply for one of six bursaries, valued at $500 each, to attend the upcoming National CBA Immigration Conference from June 1 to 3, in Ottawa, Ontario. Bursaries are awarded as a reimbursement to successful applicants who attend both the BC and National Immigration Conferences.

uuu More information about the bursary and application process can be found at cbabc.org/Immigration/Bursary.

CONNECTING WOMEN LAWYERS

The BC Women Lawyers Forum is pleased to host its biennial gala once again. This spring, we will honour recipients of the WLF Award of Excellence, the Debra Van Ginkel, KC Mentoring Award, and the inaugural recipient of the Rising Star Award.

Our new Rising Star Award celebrates the accomplishments of a woman lawyer who has achieved tremendous professional success over the course of ten years of practice or less, and who has contributed to improving the legal community in BC.

The Debra Van Ginkel, KC Mentoring Award honours the memory and accomplishments of Debra Van Ginkel, KC, an extraordinary woman and lawyer. Debra believed that all people, women lawyers especially, need a mentor. Debra was a committed, inspirational, and wise mentor. The Award recognizes a mentor with the qualities and commitment Debra demonstrated throughout her life and legal career.

The WLF Award of Excellence celebrates the accomplishments of a woman who has succeeded in breaking new ground for women in the legal profession in BC. The Award recognizes an exceptional woman who has taken risks, fostered change, and ultimately opened doors for women lawyers.

The BC WLF looks forward to welcoming and reconnecting with friends and colleagues at the gala in the spring of 2023!

WLF Update by Sara Li

communitynews

Recommended forms of legal opinions for commercial transactions are now available on CLEBC’s website

These forms have been developed over the past 40 years by a group of lawyers, the Solicitors Legal Opinion Committee, from many of the law firms advising clients in transactional commercial transactions. The opinions are available for download in Word format and the web page also contains some agreed protocols on providing legal opinions.

The opinions are to provide guidance to British Columbia lawyers who are asked to provide closing opinions in commercial transactions. Use of the recommended forms will assist lawyers in completing commercial transactions by providing guidance on the accepted legal practice standards.

The current recommended forms of opinion are for use in the following transactions:

„ Standard form for use with standard form documents

„ Commercial transaction

„ Real estate, no bare trustee

„ Real estate, bare trustee

„ Personal property security

„ Foreign law

„ Limited partnership

In addition, the web page contains statements by the committee on:

„ Solicitors’ Legal Opinions Committee Standard Form Security Instruments, SLOC has broadened the application of the statement to all “standard form documents”

„ The Silverado Accord, including Certain Guidelines

„ Suggested Protocols for Virtual Closings — July 2014

„ Due Diligence Checklist (in process)

„ Notes re: Standard Opinions

To learn more, visit: cle.bc.ca/solicitors-legal-opinions

Hiring Your Way to Business Success

Someone once told me, “If you hire the right people, and do nothing else right, your business will probably succeed, and if you hire the wrong people, and do everything else right, your business will probably fail.” Neither a quick google search nor my memory can attribute this quote (apologies to the originator), but I wholeheartedly endorse it. In a professional service industry, like law, it is particularly apt.

So how do you hire the right people and avoid the wrong people? I don’t have all the answers, but as an employment lawyer for 18 years and leader of a growing law firm for six years, I have learned a few things about hiring. The proof is in our awesome team at Forte Workplace Law.

RECRUITING IS A LONG GAME

It can be frustrating when the timing does not work out to bring someone great into your firm, but don’t give up. It might not be the right time now, on your end or on theirs, but that does not mean you won’t eventually work together. Maintain connections and relationships with potential hires and it is amazing what can happen over time. Several of the lawyers on our team have eventually joined our firm after the timing was not right in earlier discussions.

ALWAYS CHECK REFERENCES

Not sometimes, always. People have suggested to me that references are useless when they are provided by the candidate. I disagree. It can be tempting to skip reference checks in a tight labour market when you are trying to make a quick decision. There are no time savings when it becomes apparent after a few weeks or months that it is not a good fit, and you need to let the person go and start over. When you are checking references have a set list of questions to ensure you cover off any key job requirements or concerns raised by the interviewers, but also be prepared to go off script. An excellent question to finish is “would you hire this person (again)?”

VALUES ALIGNMENT IS CRITICAL

Do you know your firm’s values? That is the first step. Our firm’s values are heart, kindness, and courage and these inform everything we do, including our hiring decisions. You can ask candidates to speak to values alignment in their cover letter, ask interview questions about behavioural examples, and canvas values with references. If there is not a culture and values fit, it is not going to work out, so it is worth investing time up front to consider this carefully.

DIVERSITY MATTERS

It is easy to attract and hire people who are like you. We tend to know and be connected with other people who are similar to us. Diversity adds incredible value to your business, but it takes effort and intention. We have worked through many revisions to make our job posting language more inclusive, we prefer to post jobs rather than hire from our network without posting, and we focus on building a more diverse network of potential new hires. Diversity adds value to your team internally, and it also expands your referral sources and client base.

PLAN FOR THE END

Law firm employment is (thankfully) rarely ‘til death do us part, but not enough firms plan for the end. This can lead to costly and stressful disputes when it is time to move on. Law firms should consider and discuss resignation and termination with job candidates before hiring and prepare a written employment contract. A few key issues that are best canvassed up front are resignation notice, termination notice/ severance, and what precedents or other materials can be taken. If there is compensation based on collections, think about how you will address work done but not collected on departure. Clarity on these terms at the start can save a battle (and a bundle) at the end.

Happy hiring!

Sara Forte is the founder of Forte Workplace Law, an employment law boutique with offices in BC and Alberta.

practicetalk

DAVID J. BILINSKY

The State of the Legal Biz How things have changed

r Take me to the clouds above

Take me to the clouds above r

—

Wayne Dyer once said, “If you change the way you look at things, the things you look at change.” The pandemic forced law firms to change the way they look at how they carried on business. As a result, the way lawyers carry on business has changed.

LawPay and MyCase carried out their 2022 Legal Industry Report (bit.ly/bt0223pt1) between August and September 2022, and the results have just been released. Their 31-page report provides many an insight into how things have changed in the state of today’s law firm. For example:

“Law firms’ investment in technology — especially technology that enabled remote work — occurred at rates never before seen. Many experts have suggested that the pandemic’s effects may have accelerated technology adoption by as much as a decade.”

One of the biggest changes has been the adoption of cloud-based technologies. 57% of survey respondents reported that their firms invested in cloud computing tools during the past year because of the effects of the pandemic, resulting in 80% of surveyed firms now using cloudbased applications.

Not surprisingly, remote working software was high on surveyed law firm’s adoption cycle. 70% of firms reported that remote working technology was part of their law firm’s long-term business continuity plan. The business case for working remotely was clearly demonstrated.

The study continued, “Virtual court appearances and hearings, which were arguably inconceivable by many before the pandemic, are expected to continue even as the pandemic wanes.” Well, perhaps in the USA. Here in BC, we seem to have made a great leap backwards to the 17th century as indicated by:

“On February 1, 2023, trial management conferences will resume in person in accordance with Rule 12-2(4) of the Supreme Court Civil Rules and Rule 14-3(4) of the Supreme Court Family Rules. When this change takes effect, all civil and family proceedings will be in person unless the Court otherwise orders or directs,” (as per the Supreme Court of BC notice — bit.ly/bt0223pt2).

One change that will continue will be the use of online payment tools. They found that the vast majority of firms (84%) now accept credit cards and payments from clients using such online tools.

A change that is ongoing is the transition from consumer accounting

software (used in 50% of surveyed firms) to legal specific accounting software (currently used by 28% of surveyed firms). The reason is straightforward:

“Given that legal-specific accounting software is designed with the ethical compliance needs of attorneys in mind, we expect that percentage to trend upward over time now that these tools are more readily available than in years past.”

Another use of the cloud was to store documents online. Given the advantages that online storage provides for remote access and remote work, online backup, and protection from physical destruction, only 7% of survey respondents reported that their firms did not yet store documents online.

There are many other insights contained in the full report. One thing is clear. Law firms today are saying “Take me to the clouds....”

Music and Lyrics by G. R. Merrill, S. Rubicam, A. Clayton, D. Evans, P. D. Hewson, L. Mullen, N. M. Walden, recorded by U2.

David J. Bilinsky is the principal of Thoughtful Legal Management, a technology and practice management consultancy and is the former Practice Management Advisor, Law Society of British Columbia. Email:

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.

PRACTICE

COACHES

PROGRAM

Coming soon! CBABC is launching Practice Coaches to support lawyers needing short term and topic-specific advice.

Interested in sharing expertise in your area of practice?

We are still welcoming volunteers with 10+ years of call in areas like:

• Criminal Law

• Administrative Law

• Information and Privacy Law

cbabc.org/coaches

advocacy inaction

As we continue to contribute to a fair, modern, and accessible justice system for all British Columbians, CBABC is celebrating a number of advocacy wins in recent months that reflect the range of policy positions developed by our members.

INDIGENOUS JURISDICTION OVER CHILD WELFARE

CBABC welcomes historic legislation, the Indigenous Self-Government in Child and Family Services Amendment Act, passed by the provincial government in November 2022. The Act amends the Adoption Act and the Child, Family and Community Service Act to respect and uphold the inherent rights of Indigenous communities so that they may provide their own child and family services.

These amendments — the largest in 25 years — reflect CBABC’s recommendations to overhaul the child protection system (bit.ly/bt0223a1) and address the overrepresentation of Indigenous children (bit.ly/bt0223a2).

DATA COLLECTION & DISCLOSURE

The Ministry of Attorney General responded (bit.ly/bt0223a3) to CBABC’s submission encouraging the development and use of court user surveys. The Ministry shares our interest in modernizing the court system and increasing access to justice through user-centred design principles and methodologies.

We look forward to continuing to engage and further advocate with the Ministry and the courts for changes that incorporate court users’ perspectives.

SINGLE MOTHERS’ ALLIANCE V. BC

On December 15, the Supreme Court of BC granted Single Mothers’ Alliance public interest

\ EMAIL: ADVOCACY @CBABC.ORG

standing in their constitutional challenge to BC’s family law legal aid system, in which they are suing the Province and Legal Aid BC for not providing adequate family law legal aid. The CBA appeared as an intervenor in Single Mothers’ Alliance v. BC in this hearing and argued that SMA met the test for public interest standing.

CBABC has long advocated for increased access to justice for families and improvement of the family law legal aid system. The decision to allow this case to proceed significantly enhances the ability of public interest organizations to bring forward legal cases on behalf of marginalized communities. We are grateful to JFK Law LLP and, in particular, Tim Dickson for providing pro bono counsel to the CBA in this case.

JUDICIAL COMPENSATION COMMISSION

Three years into a digital transformation expedited by the COVID-19 pandemic, the Provincial Court has undergone dramatic change, as has the job of those on the Bench. However, BC’s judiciary remains among the lowest paid across Canada and candidate applications are declining. We have long advocated for provincial judicial salaries to be fair, reasonable, and competitive to attract the most exceptional and capable applicants for appointment.

In January 2023, CBABC delivered a submission to the 2022 Judicial Compensation Commission, recommending a significant increase to Provincial Court judges and judicial justices’ base salary to better reflect the increased demands they face, and align more closely with salaries of their counterparts across Canada and lawyers in private practice

MITCHELL SELLY

A Modern Business Model

Re-thinking the relationship between partners and associates

What constitutes a modern law firm is always changing. Instead of giving you a definition, I will outline what my firm has done to modernize our structure.

A classic firm structure is a topdown management model. The best visual description would be a pyramid with the senior partners on top. Senior partners make the business and management decisions of the firm. Associates at the firm work for/with the senior partners and have strict billable hour targets. The classic structure has traditional overhead demands primarily related to brick and mortar office space. Partners then set the billable targets to ensure that the associates can essentially pay for the overhead of the firm and make profit for the partners.

Many classically structured law firms will have a partnership track. This structure often puts the interests of the associates at odds with those of the senior partners. Young associates are trying to maintain a work-life balance with a young family while the partners need to ensure viability of the business and ensure profitability.

The top-down structure is designed to benefit owners, as the owners bear nearly all the financial risk of the business. For associates, success within this model means becoming a partner.

Law firms have generally resisted change but unfortunately whether a law firm wants to change or not, change is here. Associates want more control. They want control over the type of work they do and control over their work-life balance. They want to be compensated for the value they bring now, not for the proverbial “carrot on a stick,” i.e., the possibility of partnership.

The pandemic was a catalyst for many firms to finally embrace technology that had been around for years. While embracing technology is a step in the right direction, in my view, a truly “modern law firm” needs to re-think the relationship between partners and associates in the firm.

But how does one reconcile the opposing interests of partners who want to ensure a strong bottom line and healthy profits against associates who wish to have more control over their working conditions, career direction, and work-life balance?

My firm has created the 80-20 associate counsel program. It flips the classic pyramid upside down. Under the program, associate counsel are entitled to practice in any area they wish and retain 80% of their billings. This is in stark contrast to the typical compensation model for associates,

which is usually closer to a 50/50 split, billings to earnings. Associates are expected to work remotely. They have no billable targets and have total control over their own hours. Associates can make use of the firm’s trust account and have assistance from our accountant and reception, but other administrative assistance becomes their responsibility. The firm covers Law Society fees and insurance and the use of our cloud-based file management software (Clio).

Our de-centralized model is more akin to the relationship of a real estate agent to a real estate brokerage firm than that of a traditional law firm structure. It can act as a bridge to solo practice for those worried about taking the leap. Associates enjoy total control over their career and have most of the benefits of solo practice while retaining the security of being part of a larger firm.

No more fear of failing to meet a billable target. No more struggling between family obligations while meeting your employer’s demands.

As we all know, the practice of law is a demanding profession. Our view of a modern law firm is one that allows people to be compensated more fully for their efforts but also allow them to choose the way they meet their career and financial goals. Remote work is the way of the future, but the benefits and collegiality of being a part of a firm can still be retained with our modern business model.

Mitchell Selly, partner at MacIsaac & Co. in Victoria.

Seniors First BC Protects the Rights of Older Adults

The multi-disciplinary team at Seniors First BC protects the rights of older adults of limited means through a unique combination of psycho-social and legal supports. The Law Foundation of BC is proud to support Seniors First BC’s Elder Law Clinic (“ELC”) and Legal Advocacy Program (“LAP”).

The ELC offers seniors a variety of legal services, from consultations to representation in the Lower Mainland, and advance planning clinics in Prince George and Nanaimo. Since COVID-19 restrictions were relaxed, demand for services has increased by 24%, including on matters related to residential care homes.

The LAP, which has seen a 45% increase in intakes, complements the work of the ELC by providing information, advice, and representation on income security, housing, debt issues, and matters before the Civil Resolution Tribunal.

Seniors First does dedicated outreach with professional interpreters to connect with and serve older adults who are deaf or hard of hearing and offers in-person services at a bi-monthly clinic in partnership with the Vancouver Coastal Health Deaf Well-Being Program.

In the months ahead, Seniors First BC will work with the Haida Gwaii Legal Project Society to offer free advance planning instruments to Indigenous clients. Lawyers interested in getting involved should contact Marie-Noël Campbell: mncampbell@seniorsfirstbc.ca

DAVID CLAASSEN

Social Media Tips for Lawyers Get

posting...

Social media provides a meaningful opportunity and an effective tool for lawyers and law firms to break out of traditional advertising and reach significant new audiences. It is low cost and has almost no barriers to entry, but requires time and effort to make the most of it. While many lawyers may be wary of this mode of marketing, making an effort on social media is definitely worthwhile and something that more lawyers should consider.

It can be overwhelming to know where to start given the broad range of platforms and types of posting available. However, what really matters is simply to start. There are lawyers making significant impacts on every social platform, from posting in community Facebook groups to engaging in lengthy live tweeting of Supreme Court of Canada hearings to making TikTok videos about family law.

The biggest fear for most lawyers in getting started with social media is anxiety about what to post and feeling that they do not have anything to say. This is a totally normal feeling. The key to successful social media posting is to talk about things you actually know about and care about — that will come through in the post, regardless of where you are posting.

Social media is generally ineffective when used as a billboard for traditio nal advertising. Simply posting

ads for your firm on social media platforms is better than not using the platforms at all, but is unlikely to gain much traction. Instead, it is necessary to generate content that actually interests your audience and encourages them to engage with it in order to get some traction.

One of the best parts about creating engaging content is pushing yourself to think about ways to make you and your work interesting. Social media is an excellent opportunity to get out your story about who you are as a lawyer and a person. Many popular posts are only tangentially about the law at all. They could be about your backstory and how you got into law, they could

updates, case summaries, and black letter law issues, so long as you make them interesting.

An underrated part of social media is the engagement with other people. Thinking of social media as simply a megaphone to say what you want to say is missing the most important part, which is the connection to other lawyers and clients. This is the “social” part of social media! Liking and commenting on other people’s posts and engaging with their content can be an easy way to get started in social media and can also benefit you in deepening those ties, leading to referrals or new clients.

There are, of course, also drawbacks to social media. The nature of social media posts is that they are public and widely available, which means that if someone takes offense to something you have written, that could potentially also become public and widely available. Some platforms encourage combative behaviour and reward inflammatory posts, which can quickly become counter-productive when trying to increase awareness of your personality and practice.

Overall, social media is an excellent way for lawyers of all seniority levels to express themselves, show off their experience and knowledge, and connect with peers and clients in an interesting and enjoyable way.

be about issues you have run into while attempting to parent and maintain a legal career, or venting about how the court registry still wants wet ink signatures on orders. You can also post substantive law

David Claassen is a partner at Jenkins Marzban Logan where he acts as a mediator and practises construction law. He is regularly surprised at how often people read what he posts on LinkedIn.

Making an effort on social media is definitely worthwhile and something that more lawyers should consider.

JANIENE CHAND

Delegating to Reduce Your Clients’ Costs

Are you struggling to reduce your clients’ costs? Depending on your area of practice, there may be some different strategies you can try implementing. There is one strategy that can work across the board, especially for litigators.

Efficiently delegating to your paralegal.

Legal Administrative Assistants and other support staff can also be included, but for now let’s focus on paralegals.

Depending on the firm structure and area of practice, paralegals either bill their time or they don’t. Either way, their billable rate is less than a lawyer’s rate so by delegating efficiently to a paralegal, the client’s cost can be significantly reduced.

Sounds pretty straightforward, right?

You probably already delegate to some extent, but have you wondered if you are doing it properly? This is often the part that is overlooked.

Lawyers often seem to take one of two approaches to delegating:

1. Keeping the paralegal in the loop from the beginning so they know what is happening on the file, or

2. Only including the paralegal when tasks need to be done, and keeping them out of the loop otherwise.

The first approach lets the paralegal know where things are at on a file and what tasks they need to do.

Paralegals have advance notice on deadlines and can organize their schedules to better manage their time, making last-minute delegation an exception rather than the rule. As a result, they can manage their capacity better and take on more tasks to help out the lawyer. It provides an opportunity for the paralegal to diarize properly and stay on top of what is happening or what needs to happen on a file. This means not as much time needs to be invested by the lawyer on explaining things to the paralegal, or working on tasks that they could have delegated. It also means that the paralegal has time to do their best work and build their expertise, leading to less reviewing and revising being required by the lawyer. This approach leads to more efficient delegation and reduced client costs.

The second approach leads to less planning and a lot more last-minute delegation. By taking this approach, the lawyer often ends up having to do tasks that they could have otherwise delegated because the paralegal is already occupied, or they feel that it will be quicker if they do it themselves. Even if the paralegal is assigned the task, they will be more rushed, and require more review and revision from the lawyer. This can also lead to higher chances of mistakes and the need for amendments,

in addition to the running risk of missed deadlines or additional time being spent on asking for extended deadlines. Instead of reducing the costs, this approach can potentially lead to additional costs, along with more pressure being put on the lawyer and paralegal.

So how can you implement the first approach?

Here are some strategies:

„ Including paralegals in all relevant emails from the point a file is opened.

„ Briefing paralegals after court related hearings/appearances.

„ Creating a master file list so everyone on the team knows the status on files.

„ Providing detailed instructions with deadlines when delegating tasks.

„ Developing precedents and templates to make delegating easier.

Overall, clear communication between the lawyer and paralegal is important for increased efficiency. Once an efficient system is created, it leads to more proactive opportunities for the paralegal and more opportunities for the lawyer to use their time wisely on tasks they cannot delegate.

Through efficient delegation, lawyers can increase their productivity on a client’s file while simultaneously reducing their costs.

Janiene Chand is a lawyer turned lawyer coach and founder of Janiene Chand Coaching. Connect on LinkedIn — linkedin. com/in/janiene-chand-43b52b164

BCLI Artificial Intelligence and Civil Liability Project

What happens when a robot commits a tort? In the BC Law Institute’s Artificial Intelligence and Civil Liability Project, an interdisciplinary committee combining expertise in law, computer science, medicine, and engineering is considering how tort law needs to adapt to provide redress for harm caused by artificial intelligence (“AI”). AI is used now in a vast and rapidly growing range of applications. To an increasing extent, AI is taking the place of human decision-makers. AI surpasses human capabilities in some tasks, but is not infallible.

Applying common law tort principles developed in light of human reasoning and conduct to AIrelated harm is far from straightforward. The nature of AI is such that harm it may cause to persons and property in pursuing its programmed objectives may be unrelated to any identifiable defect in its design, programming, or pre-deployment handling. This raises difficult legal and policy issues about causation, fault, foreseeability, and where liability should rest. BCLI will issue a consultation paper in spring 2023 on proposed reform to address these challenges, and wants to hear your views. For more information and to download the consultation paper when it is issued, visit: bcli.org/project/artificialintelligence-and-civil-liability-project.

HASTINGS

Artificial Intelligence Coming soon: the future

In 1997, IBM’s “Deep Blue” beat world champion Garry Kasparov. In 2018, “OpenAI Five,” five separate AI agents working together, beat a team of professional players at the e-sport Dota 2.

In 2021, OpenAI released “DALL-E 2,” an AI-driven image-generation platform. On November 30, 2022, OpenAI released a free research preview of ChatGPT, an interface to its “GPT-4” language model, which allows users to receive answers in text form. ChatGPT also has access to publicly available information, to a cutoff in 2021.

The below quote was generated by ChatGPT, in response to the prompt: “Summarize the biggest changes likely to occur in the legal services industry as a result of artificial intelligence in the next five years. Keep your response under 450 words. Provide sources, omit links.” The article image was generated by DALL-E 2, in response to a prompt suggested by ChatGPT to exemplify the points ChatGPT raised in relation to the future of AI in the legal profession.

“It is difficult to predict with certainty the exact changes that will occur in the legal services industry as a result of artificial intelligence in the next five years, as the rate of technological advancement can be unpredictable. However, here are some changes that may occur, along with sources for further information:

1. CONTINUED AUTOMATION OF ROUTINE TASKS: AI is expected to continue automating a number of tasks currently carried out by

lawyers and paralegals, such as document review, legal research, and contract analysis. This will enable lawyers to work more efficiently and focus on higher-value tasks that require more complex analysis and judgment. According to a report by Deloitte, the use of AI in the legal industry could lead to a 20-30% reduction in the amount of time that lawyers spend on routine tasks (Deloitte, “Artificial Intelligence in Law”).

2. WIDESPREAD ADOPTION OF AI-POWERED LEGAL RESEARCH TOOLS: AI-powered legal research tools are expected to become more prevalent in the coming years, providing lawyers with more accurate and up-todate information than is currently available through traditional legal research methods. A report by the American Bar Association found that AI-powered legal research tools could significantly reduce the time that lawyers spend on legal research and improve the accuracy and completeness of their research (American Bar Association, “The Future of Law: Artificial Intelligence in the Legal Industry”).

3. CONTINUED DEVELOPMENT AND USE OF PREDICTIVE ANALYTICS: AI-powered predictive analytics are expected to be used more widely in the legal industry to predict the outcomes of legal cases based on past precedent and other relevant data. This could help

lawyers to better advise their clients on the likelihood of success in a particular case and could also help to reduce the time and cost of legal proceedings. A report by the Rand Corporation found that the use of predictive analytics in the legal industry could lead to more efficient and cost-effective legal proceedings (Rand Corporation, “Predictive Analytics in the Legal Industry”).

Other changes that may occur in the next five years include improved access to legal services through the use of chatbots and virtual assistants, and the need to address ethical concerns related to the use of AI in the legal system. However, it is important to note that these changes are not certain, and the legal industry may evolve in ways that are currently difficult to predict.”

Though impressive, there are limitations. It took me 11 attempts to get the quote the way I wanted: creating a response to fit into a word count was challenging for ChatGPT, which instead often truncated longer responses. The citations also appear incorrect, but I’m not sure that issue isn’t on my end.

ChatGPT is not a law-specific AI, and yet can return a reasonably good and lightning fast starting point for legal research, even with paragraph citations if you ask.

My prediction: as ChatGPT says, AI-lawyers like DoNoPay’s aren’t replacing us any time soon, but AI-assisted lawyering is just getting started.

Brandon Hastings (bhastings.com) (he/him) is a civil and family litigator and mediator, who regularly conducts appeals, and practises with Cassady & Company on the traditional territory of the Qayqayt First Nation.

From Sole Practitioner to Mid-Size Firm in 10 Years

In 2012, I left the security of working in an established law firm to set up shop, alone. My decision was driven by a change in my family situation which required more of my support at home. I started Southern Law with a focus on conducting workplace investigations, drawing on my experience as a labour lawyer, mediator, and adjudicator. In a few months, I was tapping on the shoulder of my long-standing colleague and friend, Yuki Matsuno, to see if she would help.

In 2019, Southern Law merged with Butler Workplace Solutions, and we have doubled in size since the pandemic. Today, Southern Butler Price LLP (“SBP”) is the largest firm of its kind in Western Canada, with 27 lawyers supported by our administrative team.

I often get asked how we did this. While there are many factors, here’s a summary of those most instrumental to our growth.

BE DIFFERENT

Most labour and employment firms declare themselves employer side or union/employee side. Prior to SBP, no BC labour law firm offered only neutral services.

Given legislative changes and growing awareness of workplace human rights issues, we saw the potential for work. We also believed the best way to serve clients was from a neutral firm platform, effectively, “no one’s side.” Our firm committed to only offering core services as impartials: investigations, mediations, arbitrations, and training.

Lesson? Building a firm without litigation or advocacy work was risky — but it worked. Don’t be afraid to be different. Filling a unique need sets you apart.

WORK DIFFERENTLY

From the beginning, we brought back talent who had left traditional practice because the work structure did not meet their personal needs. Our lawyers choose their path: their files, their relationship with the firm (contract or employment), where they work, how much they work. We kept our operating expenses low and have limited office space. We were hybrid pre-pandemic, because creating a flexible workspace was always a core value.

We have high retention and job satisfaction levels, offer competitive salaries, and attract exceptional talent.

Lesson? Offer what others do not, and great talent will come to you.

HAVE A PURPOSE

The necessity of purpose, both for motivating talent and attracting clients, is key.

Our purpose is clear: we help build and maintain exceptional organizations, using creative tools grounded in fairness and respect. That purpose resonates with clients seeking to resolve workplace conflict and create respectful spaces.

This ethos of the firm also creates purpose for our team. In Drive: The Surprising Truth About What Motivates Us, Daniel Pink talks about the three attributes of intrinsic motivation: autonomy, mastery, and purpose. We have a firm that supports our lawyers exercising autonomy, developing mastery, and creating a common purpose. This combination motivates and energizes our team.

Lesson? Aligning purpose externally and internally is a powerful magnet.

HAVE A BRAKE (AND SOMEONE WHO WILL USE IT)

Key to our strength is our decision makers’ diversity. Left to my own devices, I only push the accelerator. While my incessant forward momentum has its positive attributes, it also has profound downsides. Burnout, inadequate administrative systems, and slippage on quality are hazards resulting from running too fast without scaffolds.

We have a lot of work and strive to provide excellent service to all our clients. However, we learned that adding people does not always fix a capacity problem — at least not quickly. You must invest time and resources to develop new talent.

The best decision I have made is having partners. Equal voices, with different views, risk thresholds, and expertise, have been a game-changer. My foot is still on the accelerator, but I sure appreciate those around me who check the rear-view mirror and brake when needed.

Lesson? Don’t be the only one driving.

Lisa Southern is a lawyer and the managing partner of Southern Butler Price LLP, a law firm that focuses on workplace investigations and dispute resolution.

professionaldevelopment

CBABC Conferences in Spring 2023

CBABC offers several exciting opportunities for you to meet your 2023 CPD goals. From Vancouver to the interior, from the island to the North, our in-person conferences bring knowledge and skill-building to new heights with stunning natural views, unforgettable social activities, and connections with colleagues.

IMMIGRATION LAW CONFERENCE

Pathways to Immigration

The Annual Immigration Law Conference returns to Vancouver with in-person and virtual viewing options! Topics include family class permanent residence applications and a review of the most notable recent cases in immigration law.

March 3, 2023

Pinnacle Hotel Harbourfront, Vancouver

Explore: cbabc.org/immigration

NORTHERN BC LAW

TALKS

Lawyering Skills in the North

May 5, 2023

Ramada Hotel, Prince George

FAMILY

LAW

CONFERENCE

Good Clients on their Worst Behaviour

Tax issues, separation agreements, and pension division...dive into the nuances and psychology that stir up your practice. Located at Sparkling Hill Resort & Spa, the conference weaves together leisure and fine dining as a reprieve from the stressors of daily practice.

April 27-28, 2023

Sparkling Hill Resort & Spa, Vernon

Explore: cbabc.org/family

CENTRAL VANCOUVER ISLAND SOLICITORS’ CONFERENCE

May 2023

Details Coming Soon!

Talent Management Series

Investing in talent management is one of the most important things you can do to build a solid legal team for your firm. Knowing how to recruit, train and support the next generation of lawyers is critical to getting the best return on your investment. Maximize the potential of your legal team with our three-part series!

Part 1 – Becoming an Articling Principal On-Demand bit.ly/TMS_Part1

Part 2 – What Lawyers Want: How to Recruit & Retain the Next Generation Feb 15 bit.ly/TMS_Part2

Equality, Diversity & Inclusion Series

This series is sponsored by:

Part 3 – Working Together: Maximizing Paralegal Talent Feb 28 bit.ly/TMS_Part3

Advancing equality, diversity and inclusion in the legal profession and the justice system is one of CBABC’s core tenets. Our Equality, Diversity and Inclusion series takes an in-depth look at the opportunities in our profession to build EDI knowledge and awareness in B.C.

Part 1 – Including Lawyers with Disabilities | Mar 7 bit.ly/EDI_Part1

Part 2 – Unconscious Bias in the Workplace | Mar 22 bit.ly/EDI_Part2

Part 3 – EDI Pathways to Lawyer Well-being | Apr 5 bit.ly/EDI_Part3

TONY WILSON, KC

The Trap of Perfection

The damage that perfection can do to lawyers

The findings of Phase

One of the National Study on the Health and Wellness Determinants of Legal Professionals in Canada titled “Towards a Healthy and Sustainable Practice of Law in Canada” was released in late 2022, and reported that significantly higher levels of psychological distress, depression, anxiety, burnout, and suicidal thoughts are experienced by legal professionals compared to the Canadian working population overall and even greater proportions are reported by younger professionals and members of equity-seeking groups. These findings reminded me of one of the most memorable speeches I ever heard at a Call Ceremony, and it was given by Madam Justice Sandra Ballance (as she then was) in 2015. She was way ahead of her time identifying the “quest for perfection” being a problem rather than a goal. She continues to speak on this topic with her mediation colleague, former Supreme Court Judge Honourable Jane Dardi. But here’s what she said in 2015:

“On the day of my Call,” she said, “I was unaware that I would soon be learning many lessons. Some of those lessons were kind. Others felt harsh. The years passed. I am much older now… and I believe wiser. So this morning, I thought I would impart one piece of advice that I wish I had heard when I was you. I believe it would have spared me from some of the sharper growing pains that I endured. And it is a simple message: Beware the insidious danger of

striving for perfection in your careers. Aiming for perfection is a dangerous mindset. It’s a crushing expectation that is bound to have the opposite effect. Instead of propelling you forward into perfection-like legal performance, it will hold you back. It can paralyze you in fear — terrified of being wrong; endlessly second-guessing yourself, and it also clouds your common sense and stymies your creativity; those attributes being indispensable for a successful career. If you try to follow a ‘perfect’ path, be it set by yourself or others — of necessity, you will be too timid to take chances, and instead, will adopt a rigid mindset that risks failing the very people you have committed to help. Subscribing to the myth of perfection can suppress your willingness to ask for help when you need it for fear that you will appear weak or poorly prepared or just plain stupid.”

I’ve repeated a good chunk of her speech (with her consent), because she and I articled and practised at the same firm together, and I probably understood her message more than any other person in the room. Her speech resonated with me and I’ve never forgotten it.

No lawyer can ever be “perfect,” and the goal of “perfection” in the legal profession may be a contributing factor toward depression, substance use, toxic workaholism, burnout,

and dropping out of practice entirely. The quest for perfection can also take a toll on one’s personal life, including one’s marriage and family life. It can cause lawyers to cover-up their mistakes instead of owning up to them and asking for help from their firm, from more experienced members of the Bar, from a Bencher, or from the Lawyers Indemnity Fund. Indeed, striving for perfection in practice may actually prevent lawyers from reporting a mistake to their insurer, who may in fact be able to help “fix” the error. In short, the quest for perfection can often be a trap.

This is not to say that lawyers should be lackadaisical or complacent or strive for mediocrity in their professional lives. The fact that we all got into law school despite immense competition, articled successfully, and are still practising in some capacity means that we are smart enough to know who is buried in Grant’s Tomb and how many beans make five. We should also be smart enough to realize that the quest for perfection can be as self-defeating as it is self-destructive.

Tony Wilson, KC is a Vancouver Franchise Lawyer, a Life Bencher of the Law Society, and an Adjunct Professor at TRU Law School. Over the past two decades, he has been a regular columnist for The Globe and Mail, Canadian Lawyer, and other publications. This is his 20th year writing “Nothing Official” for BarTalk, and as everyone should know by now, the opinions expressed in “Nothing Official” are his alone and do not reflect the views of the Law Society, the CBABC, or their respective members.

barmoves

Who’s Moving Where and When

Peter Millerd

joined the partnership at Mandell Pinder LLP. Peter acts for Indigenous governments and institutions in civil litigation, regulatory proceedings, and the resolution of historical claims.

Virginia Mathers joined the partnership at Mandell Pinder LLP. Virginia advises Indigenous governments on a variety of issues, including agreements with Crown governments in relation to reconciliation and shared decision-making.

Hana Felix has opened their new law firm, Island Law Office*, with their partner Amy Jaworsky. Hana brings their expertise in Wills and Estates, Human Rights, Civil Litigation, and Tenancy Law. (*ILO Law Corporation)

Carol Cash

joined the partnership of Gehlen Dabbs Cash LLP. Her practice focuses on receiverships, restructurings, and bankruptcies as well as foreclosures, creditors’ remedies, and security recovery.

Harneel Hundal

joined KSW Lawyers as a litigation associate. Her practice is comprised of matters relating to personal property disputes, estate litigation, construction disputes, and general litigation.

Martin Bühler opened his own firm, Bühler Law, on Vancouver Island. Martin has a broad civil litigation practice.

Cecilia Barnes joined Lawson Lundell as counsel in their Corporate Commercial group and their Technology group. Cecilia was called to the British Columbia Bar in 2016.

Katie Sykes joined Lawson Lundell as counsel in their Research & Opinions group. Katie was called to the British Columbia Bar in 2021.

Jenson Leung joined KSW Lawyers in their Surrey office. Prior to joining, Jenson’s past experience included over five years of legal experience in the areas of employment law, regulatory law, and civil litigation.

Narges Naser joined Lawson Lundell as an associate in their Corporate Finance & Securities group. Narges was called to the British Columbia Bar in 2022.

Edmundo P. Guevara became a partner at Singleton Urquhart Reynolds Vogel LLP. Edmundo practices in the areas of insurance defence, construction disputes, commercial and business disputes, and personal injury law.

Erin Kotz

joined Koffman Kalef LLP as an associate in the Litigation/Arbitration/ Dispute Resolution Practice group. She maintains a general litigation practice focused on commercial litigation matters.

Malachi Cameron joined KSW Lawyers as a lawyer in their Family Law group. She assists clients with separation, divorce, parenting arrangements, child & spousal support, and marriage & separation agreements.

GEORGES GOYER, QC MEMORIAL AWARD NOMINATIONS OPEN

Recognizing service and dedication to the legal profession, the Goyer Award is presented on June 15 at the Vancouver Bench & Bar Dinner.

cbabc.org/Goyer

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

Robert Parsons became a partner at Koffman Kalef LLP. He advises clients as a member of the Lending/Insolvency Practice group.

St.John McCloskey joined Clark Wilson’s Tax group as an associate. He joins us with experience in many aspects of tax and administrative law. His clients appreciate the time he takes to fully understand their situation.

Ellen Kief joined Synergy Business Lawyers LLP. Ellen’s US Immigration practice focuses on business immigration for corporate clients and businesses in Canada, the United States, and worldwide.

ADVANCE YOUR CAREER WITH CBABC

Talent Management Series

Becoming an Articling Principle

What Lawyers Want: How to Recruit and Retain the Next Generation Working Together: Maximizing Paralegal Talent

cbabc.org/TMS

Immigration Conference 2023 Pathways to Immigration

Fri, March 3

Pinnacle Hotel Harbourfront Vancouver

cbabc.org/immigration

Family Law Conference 2023 Good Clients on Their Worst Behaviour

April 27 & 28

Sparkling Hill Resort, Vernon

cbabc.org/family