Practice Tips

by Dave Bilinsky, Practice Management Advisor
Time, technology and business

The Vancouver Sun recently headlined yet another study that found Vancouver one of the three most desirable places in the world to live. Whistler- Vancouver will host the Olympics in 2010. As the world turns its attention on BC, it is time for BC lawyers to focus outward on the world.

At the CBA mid-winter meeting in Banff last year, a panel of private practice and in-house lawyers emphasized that, when it comes to international legal work, Canadian lawyers are sought out and trusted. Furthermore, under the new National Practice Protocol (Rule 2-10.2), BC lawyers can practise in reciprocating Canadian jurisdictions for up to 100 business days in any calendar year without a permit, provided they meet the qualifications set forth in that rule.

Many practice areas already have an international focus: immigration and business law being two of the most obvious examples. And most areas of law have at least some international component: family law (where one spouse is from a different country or where children may have been taken from a different jurisdiction into BC or abducted from BC), internet law (where the buyers and sellers of products or services on the Net can be from two different corners of the globe), real estate (buying and selling of property in BC on behalf of non-residents), tax law, arbitrations, air law, banking law, class actions, corporate law, criminal law (money laundering, proceeds of crime, drugs), entertainment law (since actors and musicians are constantly on the move), elder law (as retirees may have property interests inside or outside of BC), environmental law (as pollution is no respecter of borders), health law (witness the interest in Canadian pharmacies selling drugs to Americans), human rights law, insolvency law (since business failures are increasingly global), insurance law (people, goods and transportation facilities that are insured are constantly entering and leaving BC), labour law (employers and unions have become international in scope), maritime law, natural resources law (witness the debate over duties on softwood lumber or the US's attempt to regulate the Cominco smelter in Trail), securities law (the effect of Sarbanes-Oxley is an example) and wills and trusts (since property may be owned in many different jurisdictions). Indeed, it could be argued that practising in any of these areas requires you to be aware of the international aspects of your client's affairs to competently provide legal services.

All this adds up to the fact that a BC lawyer can develop a focus in a practice area that extends well beyond one geographic location.

When you think of international work, two concepts come immediately to mind: time and distance. Developing an international practice means having to come to grips with the practical limitations of these two concepts. Fortunately, Internet technology has had its biggest successes in eliminating or reducing the effects of time and distance - and in some cases has allowed lawyers and law firms to bond with their clients in ways that were simply not possible a few short years ago. These lawyers focus on the type of legal services they are providing, combined with a vision of how technology can be applied for great strategic effect.

What are the technologies at play? Websites, email, extranets and virtual meetings are all successfully used by lawyers in the international business area. Here are some examples:

Websites and email: A lawyer seeking an international practice must be able to establish credibility and reliability with a foreign client who may not be familiar with the lawyer's reputation. A well-planned website has a strategic focus on the needs of the international client. The site should, as its top-level message, identify, promote and clearly demonstrate the specialized knowledge, reputation, prior successes and reliability of the lawyer and law firm in meeting the needs of their international clients. Since an international client may not be fully comfortable conversing in English, having the website available in the languages that are supported by the firm would also be highly desirable.

Furthermore, there is no better way for a client and lawyer to communicate quickly, easily and at low cost than email. Siskind Susser has grown to be one of the largest immigration firms in North America, courtesy of Greg Siskind's vision of how the firm's website, combined with email, could be used to market and reach immigration clients worldwide (www.visalaw.com). Greg's application of the Internet for client recruitment and client communication has shown that a law firm can have an international reach using the common tools available to all of us. In consequence, a law firm can truly tap into a worldwide market via the web.

Extranets: An extranet is a secure area of the law firm's website for access by select clients. Entry is secured by password and other authentication procedures. Security and confidentiality are an absolute necessity. A "traditional" extranet grants clients access to view the progress on their files on a 24/7 basis. In effect, the client is granted limited access to the firms' file or practice management system as it applies to specific files or parts of a file.

Both lawyers and clients often face difficulty in establishing two-way communications. In an international practice, this usually means scheduling telephone calls at awkward times to provide client updates and instructions or sending and receiving faxes. The extranet is a dramatic improvement over these methods. By virtue of the tie-in between the extranet and the practice management system in the law office, the lawyer's progress on the client's file is updated continually to the extranet and the client can view that progress at times and locations that are convenient. The client and the lawyer can then use the extranet to deliver reports and instructions in a seamless, interactive fashion.

The next level in the extranet is when lawyers use it, not just to document legal work, but to deliver legal services to clients online, in particular, complex legal advice "on demand." In this situation, the extranet becomes a subscription or paid service that grants clients access to legal research and advice on specific and well-defined legal issues. As a consequence, the extranet crafts an electronic bond that becomes a major strategic advantage to the law firm.

Linklaters - Blue Flag® and other e-business services are examples of how Linklaters has redefined the delivery of legal opinions and legal services online (www.linklaters.com). Linklaters' website reflects how their initial foray into providing online advice in the worldwide area of derivatives has expanded to include the following listed areas: Regulatory, Derivatives, Shareholding Disclosure, Funds, Pensions, Employee Share Plans, Confirms, World Bank, Netmark and FSMA Litigation. Furthermore, these websites are a sign that international firms view the world as their market and are prepared to spend time and resources to reach that market. No longer are borders any protection against legal competition.

The Blue Flag® online advice service in particular has been very successful in demonstrating that lawyers can provide legal advice 24/7 on issues that matter to clients. And they can do this in a form that is useful to clients and does not require the real-time intervention of a lawyer. The system requires considerable legal work, both at the initial launch and in maintaining the website, as it must always be up to date in the various areas of practice. Linklaters has succeeded in creating this new legal delivery model and is now reaping the benefits of its early and well-thought-out efforts.

Internet meetings: In those practice areas where it is necessary to provide expert and highly customized services to clients, Internet technology can assist in cutting the costs and inconvenience of face-to-face client meetings. Live Meeting is Microsoft's answer to working collaboratively with clients via the web. With this software, lawyers and clients can call a virtual meeting to order and use tools embedded in the software to share views or applications, to show web slides, to poll attendees and to collaborate via electronic white boards (being the Internet equivalent to an easel with large sheets of paper for brainstorming or collaboration).

To ensure that only those who are invited attend, lawyers can control access to meetings via meeting IDs and meeting keys, or through individual authentication with access control lists. Lawyers can decide what type of access control is most appropriate to the meeting. This technology allows lawyers to explain legal concepts and work collaboratively with clients to craft solutions tailored to their specific needs, notwithstanding their different locations.

Last, Internet videoconferencing is a developing technology that allows a virtual meeting in which all parties can see images of each other. For more informal conferencing, law firms can turn to technologies such as CUSeeMe, which is a lower-end Internet videoconferencing service for consumers. This service is targeted at informal chatting, and requires all participants to install the proprietary CUSeeMe software and have an inexpensive web camera or "webcam." It also needs fixed IP addresses or Microsoft Messenger accounts (www.cuseemeworld.com).

Moving towards more professional services, ViaVideo (www.polycom.com/products/viavideo.html) delivers reasonable videoconferencing when used over high-speed Internet connections. Although ViaVideo makes a big jump forward in quality, the Internet itself can unfortunately cause slowdowns. Lawyers may find that certain times, such as mid-mornings, are problematic. Videoconferences should be scheduled outside of peak Internet traffic times, but this should not be a problem for lawyers who are most likely dealing with clients who are in different time zones.

Internet technologies have clearly allowed law firms that understand the true strategic positioning of their legal services - expertise, experience or efficiency - to develop and deliver those legal services to the international market in ways that break down time and distance barriers. Furthermore, lawyers have found that creating electronic bonds with clients is a strategic tool in the battle with the competition. When it comes to an international law practice, having a strategic bond is a distinct advantage, considering the difficulty of building person-to-person bonds. In this way, overcoming the limitations placed on you by time and distance effectively puts time on your side.

US anti-spam law

The Can-Spam Act of 2003 is now in effect in the US. It supercedes anti-spam laws that were passed in 36 states. If you conduct email marketing (including an email newsletter) that is sent to American email addresses, or if you act for clients that do so, you should be aware of this statute.

Unsolicited email must have a functioning return email address, identifier information, opt-out provisions and a physical address for the sender.

The email should incorporate a method for the receiver to affirmatively consent to the receipt of further emails. You should have in place a procedure to remove email addresses when you receive notice of opting out.

The Act makes it an offence to transmit email to addresses if you have actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that the email addresses may have been harvested off the web or generated by automatic means.

Unlike some of the now-superceded state statutes, private individuals are not able to launch civil suits based on a breach of the provisions. Only state and federal Attorneys General and Internet Service Providers (ISPs) may initiate suits based on this anti-spam legislation.

The American Bar Association has published the Best Practice Guidelines for Legal Website Providers (www.elawyering.org/tools/practices.shtml), a great resource for any lawyer or law firm that has a website or is thinking of hosting one. Furthermore, the guidelines can be adapted for email.

Accordingly, lawyers should be aware of the Can-Spam Act when considering their marketing practices or when advising their clients, particularly if they or their clients are doing any work in the US. This law is just the first step in attempts to control spam email and further legislation is expected to appear in most jurisdictions.

Canadian Bankers Association

In my Practice Tips column in the March-April, 2003 Benchers' Bulletin, page 9, I answered a question from a lawyer on whether or not it is okay to endorse over a trust cheque. Under Rule 3-54 it is permissible to do so, provided the lawyer keeps a written record of the transaction and retains a copy of the cheque. I also recommended endorsing the cheque with the words "without recourse" to avoid potential trust liability if the cheque should not be honoured.

I have subsequently received correspondence from the Canadian Bankers Association advising that their members may decline to negotiate cheques that have been endorsed over, due to fraud concerns. Accordingly, lawyers should consider the possibility that a party may not be able to negotiate such a cheque and what impact that would have on the matter.

Q & A: Construction draw mortgages

Q: Does Appendix 3, section 5(g) of the Professional Conduct Handbook prohibit lawyers from acting for both the lenders and the borrowers on construction draw mortgages?

A: Appendix 3 deals with lawyers acting for multiple parties on simple conveyances:

Acting for parties with different interests

2. A lawyer must not act for more than one party with different interests in a real property transaction unless:

(a) because of the remoteness of the location of the lawyer's practice, it is impracticable for the parties to be separately represented,

(b) the transaction between the parties is a simple conveyance, or

(c) paragraph 10 of this Appendix applies.

Appendix 3, section 5 reads:

5. The following are examples of transactions that must not be treated as simple conveyances:

(a) a transaction in which there is any commercial element, such as

(i) a conveyance included in a sale and purchase of a business,

(ii) a transaction involving a building containing more than three residential units, or

(iii) a transaction for a commercial purpose involving either a revolving mortgage that can be advanced and re-advanced or a mortgage given to secure a line of credit,

(b) a lease or transfer of a lease, other than as set out in paragraph 4(e),

(c) a transaction in which there is a mortgage back from the purchaser to the vendor,

(d) an agreement for sale,

(e) a transaction in which the lawyer's client is a vendor who:

(i) advertises or holds out directly or by inference through representations of sales staff or otherwise as an inducement to purchasers that a registered transfer or other legal services are included in the purchase price of the property,

(ii) to the lawyer's knowledge, directly or indirectly leads purchasers to believe that it is unnecessary for them to be separately represented in the transaction, or

(iii) is or was the developer of property being sold, unless paragraph 4(f) applies,

(f) a conveyance of residential property with substantial improvements under construction at the time the agreement for purchase and sale was signed, unless the lawyer's clients are a purchaser and a mortgagee and construction is completed before funds are advanced under the mortgage, or

(g) a transaction involving a mortgage, the proceeds of which are to be, or may be, advanced in stages as construction progresses.

It is clear under section 5(g) that, if the mortgage is of the type where the proceeds are to be advanced in stages (as would occur in a construction draw mortgage), this type of transaction is not a "simple conveyance," and the same lawyer should not be acting for both the lender and the borrower.

New resources

Watch for a new publication coming soon to the Practice & Services/Practice Resources section of the Law Society website: Managing the Finances of Your Practice. For lawyers looking to open an office, there are other papers in this section of the site that will be useful for starting up a practice, or ask for a package of materials on starting a practice, available from the Law Society office. Contact me at daveb@lsbc.org.

The Pacific Legal Technology Conference

Session papers for the 2003 Pacific Legal Technology Conference are now available for purchase on CD-Rom. Please see the order form on the Pacific Legal Technology Conference website, in Microsoft Word format (www.pacificlegaltech.com/2003sessions/Materials_Order_PLTC_03.doc) or in PDF (www.pacificlegaltech.com/2003sessions/Materials_Order_PLTC_03.pdf).

The CD-Rom is $75 +GST. If you wish the materials in both CD-Rom and hard copy, they are available for $150 + GST. If you have questions, please contact info@pacificlegaltech.com or call me at 604 605-5331.

Inherit the Wind: a Touchstone Theatre production

On April 16 and 17 the Arts Club and Touchstone Theatre, in association with the Vancouver Bar Association, will present "The Lawyer Show 2004" at the Stanley Theatre. This year's production is Inherit the Wind by Jerome Lawrence and Robert E. Lee. This is a dramatization of the infamous "Scopes Monkey Trial" that pitted William Jennings Bryant against Clarence Darrow over the issue of the teaching of evolution in the State of Tennessee in 1925.

The cast is composed entirely of lawyers, including Hamish Cameron as Brady (Bryant), Rob Ruttan as Drummond (Darrow), Gerry Lecovin as the judge, and a host of others. In addition to the talented cast, special guests will be in the jury. They include: Chief Justice Finch, Allan McEachern, Madam Justice Newbury, Mr. Justice Oppal, two Provincial Court judges, UBC Law Dean Mary Bobinski, Glen Orris QC, Rose Mary Basham QC, Gail Dickson QC and William Deverell.

All proceeds from this event go to charity.

Tickets are $65 until April 1, then go up to $75 (tickets include a wine reception after the show). Tickets: 604 687-1644. Tell them I sent you - there is a friendly competition to see who can sell more tickets! I hope to see you there.