Recent Articles in Legal Research & Law Library Blogs from LexMonitor

US Supreme Court Patent Case on Laws of Nature

slaw.admin@gmail.com (Simon Fodden) — Thu, 22 Mar 2012 13:21:13 GMT

One of the satisfying moments that recurred regularly in Star Trek, the Next Generation, was Captain Jean-Luc Picard's simple executive gesture and the words, "Make it so." A lot of magic thinking was bound up with that. The United States Supreme Court, however, has recently told attorneys that no such wishful assertion can be as effective, at least in the universe where human laws intersect with the laws of nature.

Two days ago the court released the decision in Mayo Collaborative Services et al. v. Prometheus Laboratories, Inc. No. 10–1150. The following is from the headnote:

Although “laws of
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Two days ago the court released the decision in Mayo Collaborative Services et al. v. Prometheus Laboratories, Inc. No. 10–1150. The following is from the headnote:

Although “laws of nature, natural phenomena, and abstract ideas” are not patentable subject matter under §101 of the Patent Act, Diamond v. Diehr, 450 U. S. 175, 185, “an application of a law of nature . . . to a known structure or process may [deserve] patent protection,” id., at 187. But to transform an unpatentable law of nature into a patent-eligible application of such a law, a patent must do more than simply state the law of nature while adding the words “apply it.” See, e.g., Gottschalk v. Benson, 409 U. S. 63, 71–72. It must limit its reach to a particular, inventive application of the law.

In essence, Prometheus had described a process whereby a drug dosage was to be determined upon the levels of "certain metabolites" in a patient's blood, and, of course, these levels are a function of the "laws of nature." The process following the determination of these levels as described by Prometheus was simply a well-known routine for physicians to follow and an insufficiently "inventive concept" to transmute a law of nature into a patentable process.

As Justice Breyer, who delivered the opinion of the court, said:

If a law of nature is not patentable, then neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself. A patent, for example, could not simply recite a law of nature and then add the instruction “apply the law.” Einstein, we assume, could not have patented his famous law by claiming a process consisting of simply telling linear accelerator operators to refer to the law to determine how much energy an amount of mass has produced (or vice versa). Nor could Archimedes have secured a patent for his famous principle of flotation by claiming a process consisting of simply telling boat builders to refer to that principle in order to determine whether an object will float.

Alumni

Thu, 22 Mar 2012 11:00:03 GMT

What constitutes alumni at a law firm? Does your firm have a program? Is it inclusive or exclusive? Should your firm develop an alumni program?

This is one of the few area’s in the practice of law where when asked “what are other firms doing” there is very little consistency. Some firms offer use of office space, have on-line portals that include useful materials or simply offer an annual receptions. Others would prefer that their alumni never existed.

There are a number of dividends to building an alumni program including:

Goodwill.… [more] Those who have left will have another reason to

What constitutes alumni at a law firm? Does your firm have a program? Is it inclusive or exclusive? Should your firm develop an alumni program?

There are a number of dividends to building an alumni program including:

Goodwill. Those who have left will have another reason to think positively about their experiences with you. In addition, those who are currently employed at your firm will be impressed that you handle departures in a positive manner.
Networking. Staying in touch with the alumni provides you with an opportunity to broaden your list of networking connections.
Business development. Provides an opportunity to add to business development connections, particularly if alumni have moved in-house or to firms that might serve as referral sources.
Sources for referring out work. You know their work and may feel comfortable referring clients to them.
Marketplace information. By creating a greater network, you have a wider base of knowledge regarding the marketplace.
Feedback. Based on their own experiences in your firm, former employees may provide constructive feedback that can be used to improve client services, internal procedures or workplace satisfaction within the firm.
A selling point to new hires. New hires know that staying at one firm for the long-term is unlikely. Firms that place a premium on maintaining mutually beneficial relationships over the course of a career is a benefit.
A source of new recruits. Reduce recruiting costs by alerting alumni to openings in your firm. Positive relationships with former employees will make them comfortable recommending friends and colleagues.

One of the first things to decide when creating an alumni program is how the term “alumni” will be defined. The most common definitions are:

lawyers who worked at the firm for more than a certain number of years
lawyer that has worked at the firm at any time
articling students
support staff
combination of above

Defining alumni for you firm will be highly debated and even once it has been defined people will try to circumvent the program by including or excluding individuals. Unfortunately people will find out and will talk when this happens.

Once you decide on how alumni are defined by your firm, the next step is to develop a program that will entice them to participate. Alumni programs are a form or marketing and business development as such your marketing department should participate in the program development. Your firms’ executive committee must be on board to promote the program and human resources is required to support it. The program should be developed and managed as any other client/prospect program with a defined focus and goal.

Another Copyright Infringement Case Over Unauthorized Database Distribution of Court Filings

michel-adrien.sheppard@workopolis.com (Michel-Adrien Sheppard) — Wed, 21 Mar 2012 23:08:55 GMT

This is a follow up to the Library Boy post of February 27, 2012 entitled Thomson Reuters Sued Over Use of Facta in Litigator.

That post described a class action lawsuit that was recently certified by an Ontario Superior Court of Justice judge and that alleges that the database company Thomson Reuters breached copyright by copying original documents created by lawyers without their permission and making them available for a fee through its commercial Litigator service. This includes pleadings, court motions, affidavits and facta.

The final paragraph in the post refers to a similar class action suit in the United States against West and Lexis for the use of "briefs" (facta) in commercial databases.

Yesterday, the Law Librarian Blog reported on Another Copyright Infringement Class Action Suit Filed Claiming Unauthorized Commercial Database Distribution of Court Filings. The new case was filed against West in the U.S. District Court for the District of Connecticut.

More on the U.S. situation from the Legal Research Plus blog (Stanford Law School).

In-house Access Springs for a New Look

Wed, 21 Mar 2012 19:21:25 GMT

Welcome to the NEW In-house Access blog! Spring is in the air, flowers are blooming; here in Washington D.C., the cherry blossoms have arrived giving the city a fresh face and In-house Access is following suit with a freshly redesign site. With the help of Lexblog, we have recently made a few changes to our... Continue Reading

Welcome to the NEW In-house Access blog! Spring is in the air, flowers are blooming; here in Washington D.C., the cherry blossoms have arrived giving the city a fresh face and In-house Access is following suit with a freshly redesign site. With the help of Lexblog, we have recently made a few changes to our design and transitioned In-house Access over to a new WordPress platform.

New platform — so what? In case you can’t readily identify some of our changes, let me highlight them for you. With the new WordPress platform, we have:

changed the color scheme and design to better emulate that of our online community, Member-to-Member;
added “Share Features/Buttons” at the bottom of each post, making it easier to share the information within your social networks;
added a ‘Stay Connected’ section within the left navigation, which will send you to other pages where you can continue to engage with ACC; and
made it much easier to share more dynamic content with you (e.g., video, images, etc.).

We are very excited to launch this new design and can’t wait to hear your feedback. So, take a look around, check out some of our new features and leave us a comment to let us know what you think about the new design!

Demanding Social Media Passwords From Job Seekers Is Wrong

dcanton@harrisonpensa.com (David Canton) — Wed, 21 Mar 2012 13:14:42 GMT

The issue of corporate or government employers asking for social media login ID's and passwords for job seekers has reared its head again. See this CBC article entitled U.S. job seekers get asked for Facebook passwords. And see this article I wrote a year ago on the subject. This is wrong on so many levels that it is hard to believe anyone would ask for that.

It is not unusual for employers to look at what job applicants are posting on publicly accessible areas of facebook and twitter. We can debate what influence that should have on the hiring decision, and … [more]

But no one should ever be asked to give up a logon ID or password to anything to get a job. It is the equivalent of asking to tap a job seeker's phone and listen to all their calls, or to plant a GPS enabled audio and video recording device on the person as they carry out their lives.

And since the employer has access to the person's social media accounts, it allows the prospective employer to impersonate the individual if they chose to do so, and to obtain other personal information that would enable identity theft. I'm surprised employers would put themselves in a position where they could be accused of doing that.

It violates privacy rights, and the terms of use of most sites. One of the scary aspects is that it demonstrates that the employer does not understand the basic concepts of privacy, security, confidentiality, and breaching terms of use. If they can't get these basic issues right in the employee context, it doesn't give much comfort that they understand or properly deal with these issues regarding the information of their customers or constituents in general.

In many cases job seekers will hand over the passwords becasue they are desperate to get a job – even though they know they are being asked to do something wrong. Not exactly a good way to start off an employment relationship.

What’s Hot in E-Discovery?

Wed, 21 Mar 2012 11:00:19 GMT

Machine-Assisted Review

Let’s start with a very hot if not very sexy topic. You may have heard of new technology called predictive coding or technology-assisted review. Recently, we’ve seen the phrase “machine-assisted” review a lot. They are all the same thing. A rose is a rose is a rose, but we have not yet settled on a name for this nascent technology.

Machine-Assisted Review

The way most lawyers engage in traditional keyword searches is, as others have suggested, the equivalent of “Go Fish.” The requesting lawyer makes his best guess about which keywords might produce relevant evidence without having much knowledge of the other party’s “cards.” Even worse, the attorney for the responding party often doesn’t know what is in his own client’s cards. So no one is talking from a standpoint of incisive knowledge.

To make this explanation as non-technical as possible, machine-assisted review means using sophisticated algorithms to enable a computer to determine relevance based upon training by a human reviewer. Generally, a senior partner or team will review and code a “seed set” of documents. As the reviewer continues to code, the computer begins to predict the coding based upon the human’s prior decisions. When the computer’s predictions and the lawyers coding pretty much coincide, the reviewer has confidence that the computer can code the remaining documents.

No one doubts that 2012 will be a break-out year for this technology but we have two serious caveats to pass along. First, it’s very expensive – the point of entry is generally six figures. This is not a small or mid-sized case solution. Typically, it takes the review of several thousand documents to become confident that the computer can code accurately – again, suggesting that this technology will remain in the stratosphere with the major league cases.

E-Discovery Review for Under $1000

So what are you supposed to use for review when your cases aren’t mega-cases? We suggest you check out Digital WarRoom by Gallivan, Gallivan and O’Melia. At a price point of $895 for a one-year license, we’ve seen many attorneys who are thrilled with this review platform. We’ve been recommending it for a long time, but in the interest of full disclosure, GGO recently began sponsoring our Digital Detectives podcast on Legal Talk Network. That aside, we are unaware of any oother product which does what Digital WarRoom does at such a friendly price – and the website will allow you to schedule a demo or use the product on a trial basis, so check it out and see if it works for your firm. Other experts across the country have also praised this product.

Smartphones

Boy oh boy are we seeing a lot of smartphones. Perhaps a 300% increase, which is a testament to how tied we are to these devices 24X7. We joke (although it really isn’t a joke) that smartphones are actually computers that happen to be able to make a phone call.

In general, the iPhones are rich with data, the BlackBerry is all but devoid of data (don’t waste your money – you need the computer the device was synced to). All the other smartphones are somewhere in the middle. Lawyers have had a tendency to go after computers and neglect the smartphones, so make sure you are thinking about smartphones in cases where they might be important, especially if you are interested in text messages.

Never let your client receive a smartphone as a gift. Increasingly, we are seeing spyware pre-loaded on the “gift.” Now, that’s a gift that keeps on giving – to the giver of the gift. In October of 2011, a suspicious husband gave his wife a new iPhone with the iOS 5 operating system – the phone contained an application called “Find My Friends” designed to help folks track and meet friends. The app led him straight to his wife at her lover’s house and gave him powerful evidence in his divorce case. He was quick to post his appreciation to Apple on a social media site.

Social Media

There has been an absolute explosion in the use of social media as evidence. Facebook is the big kahuna, but we’ve seen LinkedIn, Twitter, YouTube and blogs as well. Clients still fail to understand that their friends may be their undoing – from the world of family law, here is an excellent example.

In Kentucky, an appellate court affirmed a lower court’s decision to award primary custody to the father, based in part on Facebook photos showing the mother partying and drinking against the advice of her mental health providers. Though she admitted the photos were authentic, she said she had never authorized the postings which were done by her friends but “tagged” her by name.

Personal injury and employment law cases tend to be rich in social media evidence. A man who claimed to be unable to do anything requiring exertion posted photos of his skiing trip. Another man with the same claim saw that his wife was videoing him as he was using a chainsaw to cut wood and decides to do a little Irish jig for the benefit of the camera. She (of course) places the video on YouTube where the insurance company finds it.

Then there was the video of a Broadway mogul’s wife who said there had been no sex in the marriage but that she had his stash of condoms, pornographic movies and Viagra – she called his stunned assistant live on the video and asked what she should do with the stash. That stunt so irritated the judge that he gave the defendant a divorce on the grounds of cruel and inhuman treatment by the wife.

As to Facebook in general . . . .

Facebook has once again mucked with privacy settings and even had to sign an agreement with the FTC agreeing to a 20 year monitoring of its privacy practices. The lesson here for lawyers is that clients should be advised to post cautiously on social media and to periodically go through their privacy settings. They also should not accept a friend request from someone they do not know. They should think of every single post as potential evidence in a future matter. They should not drink or do drugs and post. They should not post when they are angry. As one of our friends says, “nothing good every came of a 3 a.m. post.” If in doubt, don’t post.

Preserving Social Media and Website Evidence

There are a lot of good products to preserve websites and social media evidence, including Iterasi, Hanzo, NextPoint and Reed Technology’s Web Preserver. Web Preserver is very cost-friendly at $35 per seat for 10 GB of data. It is also an excellent research tool, allowing you to create folders for subjects you’re researching and curating relevant articles and other materials you might find online. We used it to research this column.

Preliminary Results of Canadian Association of Law Libraries Survey on Publication Formats

michel-adrien.sheppard@workopolis.com (Michel-Adrien Sheppard) — Tue, 20 Mar 2012 21:52:52 GMT

This is a follow-up to the Library Boy post of December 5, 2011 entitled Canadian Association of Law Libraries Survey on Publication Formats.

The Vendor Liaison Committee of the Canadian Association of Law Libraries (CALL) has made available some preliminary results of its survey of publication formats for law-related materials.

There were 127 respondents from all sizes and types of libraries.

Some of the highlights:

An overwhelming majority finds that the most valuable content is commentary.
Many commented that bound is the preferred format for commentary (with a new edition offered every two or three years).
Looseleaf format is seen as no longer delivering value for money in terms of frequency, cost and content.
Main issues raised about online publications are related to ownership, preservation and accessibility. Licensing models are also a concern for a majority.

Full results will be presented at the upcoming CALL annual conference in Toronto in early May.

You can find publications of the Vendor Liaison Committee on the CALL website.

Don't Burn Your Bridges When Leaving an Employer…

Tue, 20 Mar 2012 21:44:18 GMT

Earlier this month, I published an article in the Montreal Gazette regarding my departure from private practice (at Norton Rose Canada) and my move to an in-house counsel position and the legal ramifications involved therewith. This post is an abridged (inproved?) version of the full article, which can be found here.

As an employment and labour lawyer, I was very conscious of wanting to do the “right” and legal thing in accepting the offer from my new employer and letting my firm know that I was leaving. Legal issues aside, I loved where I worked and wanted to treat them with the same respect that I was treated with. However, there are important legal issues to consider when resigning from a job. My recent departure gave me the opportunity to think about them from a truly personal perspective.

First of all, in Quebec (and, in most cases, the common law provinces), employees cannot be dismissed without cause without some form of reasonable notice. The inverse is also true. The law often requires employees who resign to give their employers reasonable notice before they leave. The “two-week” rule people often refer to is not set in stone in Quebec. For example, if you are managing an important project and decide to leave in the middle of it, you can be required to give more notice. In the same way that an employee can sue an employer for insufficient notice, an employer can also sue an employee for the same thing. If the employer can prove that damages were suffered (i.e., the project failed due to the unannounced departure of a key employee), the employee could be on the hook for a significant sum of money.

Similarly, even if an employee does not sign a non-competition or confidentiality agreement, in Quebec, the law still obligates them to keep confidential (and not use) information they acquired during their employment. This so-called “duty of loyalty” persists for a reasonable period after employment. For example, it would be illegal to take confidential client lists and pricing information to a competitor. Employers will often file injunctions and suits for damages to protect their interests. It can be incredibly expensive for an employee to defend him or herself against such claims.

That said, I didn’t and won’t run into any of these problems. I gave my firm the notice they requested and closed out and transferred all of my files. In return, they treated me with respect and I will keep the wonderful friends and colleagues I made there.

On a Slaw-related note, I look forward to continuing to write, this time from the perspective of an in-house employment and labour lawyer.

What's Hot on CanLII This Week

slaw.admin@gmail.com (Simon Fodden) — Tue, 20 Mar 2012 20:48:30 GMT

Here are the three most-consulted English-language cases on CanLII for the week of March 14 – 20. ♨ 1. Romspen Investment Corp. v. 6176666 Canada Ltée. 2012 ONSC 1727

[1] I suppose that on a sunny, unusually warm, mid-March day one should be mellow and accept, without complaint, the systemic failures and delay of this Court’s document management system. The problem is that from the perspective of the members of the public who use this Court, delays caused by our antiquated, wholly-inadequate document management system impose unnecessary, but all too real, costs on them. And yet the entity that operates
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Here are the three most-consulted English-language cases on CanLII for the week of March 14 – 20.

♨ 1. Romspen Investment Corp. v. 6176666 Canada Ltée. 2012 ONSC 1727

[1] I suppose that on a sunny, unusually warm, mid-March day one should be mellow and accept, without complaint, the systemic failures and delay of this Court’s document management system. The problem is that from the perspective of the members of the public who use this Court, delays caused by our antiquated, wholly-inadequate document management system impose unnecessary, but all too real, costs on them. And yet the entity that operates that part of the Court’s administration system – the Court Services Division of the Ministry of the Attorney General – seems completely indifferent to the unnecessary costs it is causing to the members of the public who use our Court.

[2] Let me tell a little story. It is not an unusual story. Indeed, it is a common story in this court. But the story illustrates an important point, a point which judges, as the ultimate stewards of the health of our system of justice, must be vigilant in keeping on the radar screens of those who hold the purse strings of this Court’s administration system.

♨ 2. Kerr v. Baranow 2011 SCC 10

[6] These appeals require us to resolve five main issues. The first concerns the role of the “common intention” resulting trust in claims by domestic partners. In my view, it is time to recognize that the “common intention” approach to resulting trust has no further role to play in the resolution of property claims by domestic partners on the breakdown of their relationship.

♨ 3. R. v. Fleming 2012 CanLII 8907 (NL PC)

2. As a society, we are trying to preserve wetlands and ecologically sensitive areas. One of the ways that we are doing this is to geographically limit the use of all terrain vehicles (ATVs). Different jurisdictions have different ways of doing this, which may reflect different weights being given to competing interests in each jurisdiction. Let me illustrate this by giving as an example the different legislative and regulatory provisions between Nova Scotia and this Province.

The most frequently consulted French-language decision was, again for another week, Langevin 2012 QCCS 613.

[1] Sylvio Langevin réclame la propriété de la planète Terre[1]. Dans un autre dossier entrepris le même jour, il réclame celle des planètes Mercure, Vénus, Jupiter, Saturne et Uranus, ainsi que des quatre grosses lunes de Jupiter[2].

[2] À l'audience, le requérant souhaite amender ce second recours pour y ajouter ses revendications sur Neptune et Pluton, ainsi que sur l'espace entre chaque planète, à la grandeur de la galaxie[3].

Change or Die? A General Counsel Panel - Part I

lindsaygriffiths@iln.com (Lindsay Griffiths) — Tue, 20 Mar 2012 19:27:29 GMT

A few days ago, I offered my initial recap of the general counsel panel that we were treated to at this year's Legal Marketing Association Annual Conference, focusing on some key quotes from the session. Now, let's get into the meat of the panel, where even more value is to be found.

The one overriding thought I had (and I was not alone if you listened to the tweet stream) was that year after year, we're hearing the same comments and advice from general counsel. What does that mean? It means that law firms STILL aren't listening to what their clients really want.

In the past, this has been manageable, because the economy was thriving and there was plenty of work to be going around. But now, as Jeff Carr of FMC Technologies warns:

There will be new business models that come into place. We'll build them if you won't. We don't need YOU to survive. We need the [legal] industry to survive."

Scary stuff.

The lesson to be learned here is that the client is in charge, as they should be. So we've got to listen to them in order to survive. Let's see what else the panelists had to say...

They began by reading Felice Wagner's "A Client's Poem" which does a good job of summing up what GCs really want (I encourage you to click through and read it).

General Counsel: Lawyer or Business person?

Then, the moderators dove right into the questions they had prepared, beginning with a discussion of the GC's role as business manager versus their role as lawyer. Jeff Carr answered this very succinctly - "We are not lawyers. We are business people first."

Going into a little more detail, he said that their primary job is to be the strategic advisor for the business team, then to be the legal advisor, and then to build and run a high performance team. Because his job is to deliver shareholder value every day, he expects the outside counsel that he works with to understand and appreciate this.

Janet Dhillon of JC Penney agreed with him, and said that her job is about balancing her clients' business objectives with their legal requirements. She has a passion for her business and believes the firms they hire should share that passion. Along these lines, Ron Barger added that firms should try to understand what roles their clients fill, because these are not just legal roles. When firms have that perspective, there are avenues outside of the legal arena where firms can bring assistance and add value.

Creating Client Intelligence

The moderators then asked the panelists to comment on how a firm's understanding of their business affects their purchasing of legal services. Janet said that it's such an easy thing to do these days with the existence of the internet and all the technology out there, and it greatly saves her time. She suggested that firms set up daily Google news alerts for their clients, and said that staying abreast on what is happening with them can keep firms relevant.

Janet emphasized again that firms need to learn about their business in order to become their go-to firm, and said that firms need to "Share our passion." Some of the best relationships that she has with outside counsel are with lawyers who will send her an email that demonstrates their passion and commitment to her company.

Ron said that in the past, firms used to send their clients newspaper clippings. However, there are now news aggregators online that lawyers can use to collect this information. He said that firms should be creating intelligence on their clients, and that it shouldn't be just one attorney at the firm doing it - it should be shared with the team. Don't simply look at what affects their business either, but also look at what their competitors are doing.

Janet illustrated this idea of staying focused on client intelligence with a story - the day after the Christmas holiday one year, a news story broke about her company, involving a plant in a foreign country. One of their firms emailed them to let them know that they had a partner vacationing in that very country, who was on the ground to assist them if needed. Although they didn't require his assistance, it was invaluable that the firm had taken the time to stay updated on the issues affecting the company, reach out to them to offer their assistance, and did so even during the holiday season. That has stayed with her.

Jeff added that outside law firms are never going to understand his business as well as he does. So instead, he expects them to understand them as a company and a legal team, and what they expect. What does he want from his firms? "To be their most important and least significant client." He wants his outside lawyers to think not like lawyers, but like business people, and to help give them a strategic advantage.

Keeping You Up at Night?

Although Ron joked that nothing is literally "keeping him up at night," he does expect his outside counsel to keep on top of the things he might not know about that are coming down the pike. So the firms who can be their eyes and ears, and talk to him about these things, are the valuable ones.

Janet agreed and said that she wants her firms to tell her what she's not planning for or anticipating. If a firm sees a trend that might impact her business, she wants to know about it. Janet also said that firms shouldn't assume that their clients know about something already - even if they do, they will appreciate that their firms are thinking about them and their business.

Jeff added that he doesn't want to hear an attorney say "You've got a big problem on the horizon and I can help you!" He just wants to know what the problem is, and how he can deal with it.

The moderators asked the panelists to comment on what sources their using for their own business intelligence gathering, so that the firms can avoid duplicating their efforts. Ron said that he reads the news, specifically the Wall Street Journal, the Washington Post, and the New York Times.

Lawyers and Non-Lawyers

The moderators then asked the panelists about their feelings on non-lawyers being responsible for managing a case. In one of the most applauded lines of the session, Jeff Carr said "I could care less if I talk to a lawyer, or I talk to a janitor. Just give me someone who can do the job." He said that lawyers needs to "get over" the difference between "lawyers" and "non-lawyers."

However, that being said, Janet cautioned that she doesn't see professionals as being a substitute for a lawyer on their matters.

It's All About Culture

Interestingly, Ron commented that he has never been asked by a firm about their culture, though understanding a company's culture is crucial, since that's what drives the business. Jeff agreed - he said that companies hire for credentials, experience and culture - the first two can be fixed, but you can't fix culture if there's a mismatch between the company and the firm. Ron emphasized, "If your firm's culture doesn't match my culture, you're dead."

Understanding a client's culture is also about understanding what they DON'T like, and in this case, the panelists agreed - they don't like surprises. Janet said that getting an unexpected bill, or learning about something she should have known already tells her that there's a communication breakdown.

Ron added that a breach of confidence is also a no-no, as well as representing a competitor. Even if there isn't a legal conflict, representing a competitor can look like an "allegiance conflict." However, Janet didn't agree with him, saying that sometimes when a firm represents their competitors, it can show that they have a particular understanding of their industry, which can help them be better advocates.

In another popular quote from the session, Jeff said that "The legal industry is perverse. It is the only industry where buyers act like sellers and sellers act like buyers." He said that another of his pet peeves as a client is when a firm won't take responsibility for something that is their fault. He doesn't want to argue fault; he just wants to know what the firm will do to make things better, and that it won't happen again. Janet agreed, saying that if a firm makes a mistake, own up to it. They can understand most mistakes, but arguing about it or not being candid is a problem.

Managing Costs

One of the things that gets everyone's attention these days is the discussion of fees, and it was no different during this client panel. Janet said that clients aren't looking to cheat their attorneys, they just have an expectation that their fees be reasonable. She also said that when there's trust on both sides and they're appropriately structured, alternative fee arrangements can really work. If you really understand a business, you will understand the level of importance of an individual matter and plan accordingly - but make sure to gauge your approach according to the importance of the matter to the CLIENT.

Ron commented that five years ago, he had said the billable hours would be gone in ten years. Since we're already halfway there, he told the audience "You guys have to work on that." He also agreed with Janet, saying that there is the misconception that clients are trying to screw down fees to grow revenues. But they just want to spend their money wisely. It comes down to aligning on the ultimate goal, understanding the deliverables, and being thoughtful about something.

Companies look at legal costs, and costs per matter, so they're irritated when their outside counsel don't. Ron said that as a whole, outside counsel are lagging behind inside counsel on competitive intelligence. GCs are looking at metrics and costs, and while law firms should, they're not. Jeff agreed and said:

The traditional law firm model is dying. Get over it and understand what the new world is going to be. There will be new business models that come into place. We'll build them if you won't. We don't need YOU to survive. We need the industry to survive."

In terms of managing costs, Jeff said that he has banned the word "alternative" - "there is nothing 'alternative' about 'alternative fees.'" Instead, he wants to talk about value-based fees, etc. His company is currently doing all of their legal work in the United States using value-based fees, and he told the audience "You guys have got to figure this out."

He emphasized that firms must know what their costs are to do a certain kind of work. Firms must understand their cost structure, which is too high and based on pass-through and on inefficiencies. Jeff says he won't tolerate that, and there are others in the industry who won't either.

Janet said that as a GC, she has the cost data for matters that have been handled for them. Firms would have even more data if they chose to capture it, but they're just not doing it. Firms should be able to figure out with every matter on average how much it will cost them. For example, she knows what it costs to litigate a certain type of matter. But if there are firms out there who know these costs, she hasn't found them yet. She's baffled when she shows her own data to firms and gets blank stares because they don't know their own costs.

Once firms understand what their costs are, Janet says that it's reasonable to build in a profit rate that's fair.

Ron recommended that everyone read Richard Susskind's The End of Lawyers, which will amplify what they shared in the panel. He said that in terms of managing costs, in his experience, when they've run firm proposals by the same matters that they've done historically, they always come in 25% higher than what they were billed. That isn't right.

He said that until firms know what their costs are, they can't be good partners to their clients. Janet agreed, saying that it's in line with their values, which is also why understanding a company's culture is so important. For JC Penney, their model is "fair and square pricing." So they expect their law firms to be consistent with that, or it's a cultural mismatch. She said that they'll walk away from firms if they think they don't share their values - it's not "win at all costs."

Tune back in tomorrow for Part II of the General Counsel Panel, when we discuss how firms can find out what their clients really want to accomplish, using secondees, whether size matters, true differentiation, and what's at the heart of it all - relationships.

Here Today, Gone Tomorrow: Insurance Implications of Lawyer Transfers and Practice Structures

Tue, 20 Mar 2012 18:55:34 GMT

The following is based on an article that appeared in the January 2012 edition of LAWPRO Magazine. While the details of the insurance coverage discussed in the article are specific to LAWPRO insureds, the issues highlighted in the article apply to all lawyers. Lawyers outside Ontario should check with their own insurance providers about what is covered under their policies.

Lawyer mobility is now taken for granted: The days of spending one’s whole career in a single practice setting are long gone. Consider these scenarios:

Scenario one: A lawyer previously in practice elsewhere joins a new firm. A claim … [more]

Lawyer mobility is now taken for granted: The days of spending one’s whole career in a single practice setting are long gone. Consider these scenarios:

Scenario one: A lawyer previously in practice elsewhere joins a new firm. A claim is made based on work completed at the previous firm, but received only after the lawyer has joined the new firm. Does the new firm have any responsibility for the claim?

Scenario two: A firm is notified of a claim related to the work of a lawyer who once worked at the firm but whose whereabouts are unknown. What is the liability of the firm and its individual partners if the lawyer was a partner? What if the lawyer was an associate?

These scenarios raise several questions:

When a lawyer departs from or arrives at a firm, do his or her claims exposures follow in lockstep?
Could former – or new – partners or employers be exposed?
What happens when a claim is based on the error (or wrongdoing) of a lawyer, and liability exceeds the limit of his or her coverage?
Are the firm assets exposed to this excess liability?
And to what extent are other partners in the firm exposed?

Scenario one

In scenario one, a relevant issue is the nature of the LawPRO policy:claims-made-and-reported (see the full article for a sidebar on a claims-reported policy). This means that coverage will be sought under the insured’s current year policy, unless the lawyer had knowledge of the circumstances potentially giving rise to the claim prior to his/her joining the new firm. In this latter case, the claim will engage a previous policy. It’s also important to remember that LawPRO’s policy (issued under the Law Society of Upper Canada’s insurance program) provides coverage to lawyers on an individual, not a firm, basis.

Either way, if the claim is covered and the amount falls within the amount of coverage available to the subject lawyer under his/her policy, neither the new nor old firm should be directly affected (subject to any arrangements of either firm with the lawyer related
to payment of deductibles and claims history levy surcharges). Of course, indirect effects could include having to report the fact of the claim the next time excess insurance is being purchased (typically done on a firm-wide basis), but that is a topic for another day.

But if the claim amount exceeds the policy limits, it is a different story for at least one of the two firms. In this case, liability based on supervision, vicarious liability or agency law will be determined by reference to the working relationships of the lawyer at the time the legal services were performed, which means that the lawyer’s current employer – or partners – should not be exposed. (For example, the outcome would be different if the new firm assumed in some way the liabilities of the prior firm).

As for excess insurance – if any – in this scenario (acknowledging there is no standard form of excess insurance policy and assuming the lawyer’s former and new firms are unrelated), it would generally be expected that the current excess insurance policy of the prior firm, if one exists, would be triggered. The second firm’s current excess
insurance policy – if the firm has one – would generally not apply because the services giving rise to the claim were not performed for/on behalf of that firm.

Scenario two

In scenario two (the lawyer who has moved on and cannot be located), the responding coverage at first instance would be the current policy coverage in place for the departed lawyer. Depending on the circumstances, that may be the full practice policy coverage (that is, if the lawyer has kept his or her standard policy in force) or run-off coverage only. The latter is $250,000 of coverage for all future claims in total, unless the lawyer arranges to buy a higher level of coverage. In the case where a lawyer’s policy is “in run-off ”, the supervising partner’s policy would generally become engaged if the damages exceeded the limits of the run-off policy coverage.

The liability of the firm or partners does not depend on whether the departed lawyer was a partner or an associate. It depends on the firm’s structure. If the firm is a traditional general partnership, the firm and its partners are responsible for all activities of other partners, employees or agents. In other words, there is joint and several liability for claims, regardless of whether the claim flows from negligence or from an excluded act (see below regarding lawyer conduct). This is so regardless of whether the “innocent” partners supervised the lawyer whose work gave rise to a claim, and regardless of whether they had knowledge of the facts.

For that reason, lawyers working in traditional partnerships are strongly encouraged to apply to buy-up their innocent party coverage to the maximum level, and to purchase
an excess insurance policy for the firm. In fact, some firms will arrange to pay for additional run-off coverage for lawyers leaving practice, when negotiating that lawyer’s exit from the firm, just to avoid the type of problem highlighted by scenario two.

If the firm is an LLP, the firm itself will be liable for the acts or omissions of all its members. Individual partners’ status is different. (See the full article for the sidebar 'Does an LLP avoid liability concerns?')

Partners in an LLP are fully liable for their own acts or omissions and for those of others under their direct supervision, regardless of the latter being partners or employees. Partners in an LLP are not liable for errors and omissions of other partners or employees, unless those errors or omissions were criminal or constituted fraud, or they knew or ought to have known of the errors and omissions and did not take reasonable steps to prevent them. However, as the partnership itself remains fully liable, the limited liability partners’ assets in the firm will be at risk.

What type of lawyer conduct often leads to law firm exposure?

As a lawyer vetting a prospective partner or employee, what should your main concern be in terms of exposure for the activities of the newcomer? Is it the quality of their legal knowledge, the excellence of their practice systems, or is it something else?

The “something else” alluded to is the possibility of dishonest or criminal conduct.

A key determinant both of coverage provided by the LawPRO policy under the Law Society’s insurance program, and of whether liability could spread beyond the individual lawyer-policyholder, is the nature of the error or omission giving rise to a claim.

An LLP business structure may shelter partners from each others’ negligent errors or omissions, but not from each others’ criminal or fraudulent acts.

What’s more, LawPRO’s policy excludes from coverage “… any CLAIM in any way relating to or arising out of any dishonest, fraudulent, criminal or malicious act or omission of an INSURED”(Part III (a) of the LawPRO policy).

So, dishonesty and/or criminal conduct clearly pose a higher risk for the firm as a whole than do negligent errors or omissions. All lawyers who practise in association or partnership with other lawyers (in other words, all lawyers other than true sole practitioners) are required to purchase innocent party coverage as described in LawPRO’s Endorsement No.5. to the policy, which has the effect of limiting the impact of the Part III (a) exclusion.

The innocent party endorsement serves to extend coverage to certain otherwise excluded acts. The coverage does this by treating a “dishonest, fraudulent, criminal or malicious” act of either the insured or of others for whose actions the insured might be liable (for example, under the doctrine of vicarious liability) as an “error, omission or negligent act” as described in the policy.

However, the extent of coverage provided under Endorsement No. 5 is subject to a sublimit (a special limit within, and counting towards, the general limit of liability) of $250,000 per claim and in the aggregate. Considering the quantum of modern fraud schemes, it is easy to imagine a situation in which a claim would exceed this sublimit.

As a result, in addition to the firm vetting carefully any prospective practitioners, LawPRO invariably recommends that lawyers working in association or partnership with others apply to buy-up their innocent party coverage to the maximum permitted, and purchase excess insurance coverage on top of that.

Structuring relationships with lawyer-colleagues: What are the claims exposure implications?

Understanding that there may be times when a firm will be exposed for claims beyond the limits of the individual lawyer’s policy, what are the differences arising from different relationships? Should a firm consider this when planning an addition to its professional resources?

1. Lawyer employee of a law firm: The simplest scenario from the perspective of assessing excess liability is that of employer/employee. Regardless of the nature of the firm structure (whether traditional partnership or LLP), both the firm itself and any partner who directly supervises or controls the work of the employee likely will be liable in the event a claim against the employee exceeds the limits of the employee’s coverage. For this reason, law firms that employ associates must purchase innocent party coverage (to ensure coverage for Part III(a) excluded acts), and are encouraged to buy-up that coverage to the maximum limit and to purchase excess insurance coverage as well.

2. Referrals: Some lawyers regularly refer work to professionals outside the firm (that is, sending work out instead of bringing that lawyer into the firm). For example, a family lawyer may refer an existing client to a criminal lawyer, who is given complete carriage of a criminal matter outside the family lawyer’s area of practice. Other lawyers may refer matters to paralegals.

While pure referrals involve no supervision or control of one professional by another, certain working relationships can muddy the waters. Consider, for example, arrangements through which sole practitioners share office space and other resources; or where lawyers not in partnership with others identify with those others (whether they be lawyers or paralegals) on their letterhead, on websites, or signage, or elsewhere.

In Tiago v. Meisels, 2011 ONSC 5914, a client of one lawyer named three other lawyers as defendants in a negligence-based suit on the basis that, by having the four lawyers’ names appear together on business cards, letterhead and a sign, the lawyers, who were sole practitioners sharing space, were holding themselves out as
partners. The plaintiffs alleged that this holding-out created the erroneous view that the lawyers were “a firm of some depth.” Stinson J. was not swayed by the defendants’ reliance on the words “practising in association” on the firm letterhead, because he was not convinced that the clients understood this to mean the lawyers were not partners. The defendants lost their motion for summary judgment.

The bottom line: Not having a certain lawyer join your firm may seem to be an effective way to limit risk. But when making referrals, lawyers should transfer carriage of the entire matter, and ensure that this is done with the client’s knowledge and approval and that the client understands that the referring lawyer and referee are not collaborating.

Also, be careful to avoid sharing resources or referrals in any way that might be interpreted as holding-out a partnership that doesn’t exist.

3. Partner:where the insured whose work gives rise to a claim is a partner, the potential for exposure to excess liability for his or her partners will depend on two additional analyses (as discussed above):

What is the firm structure – traditional partnership or LLP?
If the firm is an LLP, were there any factors present that would cause the limits on liability to be lost? For more on LLPs, see the sidebar in the full article.

Another scenario: Working with paralegals

Scenario three: A lawyer hears of a claim related to the work of a paralegal with whom the lawyer has worked. Might the lawyer be exposed to liability in excess of the paralegal’s own coverage?

Not only lawyers move around: Paralegals do, too. They also can have similar insurance issues, in terms of which policy responds, the scope of coverage, the amount of coverage, and so forth.

The answer to the question in this scenario depends on the nature of the working relationship between the two parties. If the paralegal was an employee of the firm, the firm (and likely the supervising lawyer) will be directly or vicariously liable. If the paralegal provided services to the firm on a contract basis, the firm and at least the supervising lawyer will likely be liable on the basis of agency law, possibly with a right of contribution/indemnity from the paralegal.

If the work that gave rise to the claim was referred completely to an independent paralegal (not an employee or working in association with the law firm) to be performed without the lawyer’s ongoing supervision, with the client’s knowledge and approval and with no indicia that might lead the client to believe that the paralegal and the lawyer were partners or employer/employee, liability for the claim would likely be the paralegal’s alone.

The lesson in all of this?

The potential for personal liability beyond the available coverage, for the errors of present, past, or future colleagues, is highly unpredictable.

A lawyer’s best defence? a review, at least annually, of the full spectrum of risks facing the firm and the lawyers practising within it, and of the adequacy of coverage in place to address those risks.

Also consider a special review whenever an addition to the firm or new working structure is being considered.

Book Review

Tue, 20 Mar 2012 16:54:48 GMT

My colleague Sunil Rao has published a well written book review of The Strange Alchemy of Life and Law, by Albie Sachs. It appears on the AALL Spectrum blog. From the review: In the process of conceiving this book, Justice...

My colleague Sunil Rao has published a well written book review of The Strange Alchemy of Life and Law, by Albie Sachs. It appears on the AALL Spectrum blog.

From the review:

In the process of conceiving this book, Justice Albie Sachs--who served on South Africa's first Constitutional Court from 1994 until his retirement in 2009--asked himself: "How do I actually make my decisions and write my judgments?". The Strange Alchemy of Life and Law is a lively and elegantly written exploration of this question; it is a series of interlinking chapters held together by the thread of Sachs' broad and varied experiences as a lawyer, anti-apartheid activist, participant in the formation of the Truth and Reconciliation Commission, co-drafter of South Africa's constitution, and Justice on the Constitutional Court.

The Right Questions

Tue, 20 Mar 2012 14:58:39 GMT

Last week Mary Abraham (Above and Beyond KM) asked What's the Right Question for a Better Answer? Mary's thought provoking post discussed an experience with preparing questions to get expert advice and realizing that the questions could shape the answer, limit the conversation, and possibly lead to an undesired or lengthy outcome.

By setting out the questions beforehand, I had limited the range of answers and set up false boundaries for our conversation.

I filter Mary's post with my legal research goggles on. From the librarian perspective, we know to ask open ended questions, identify what the researcher has already … [more]

By setting out the questions beforehand, I had limited the range of answers and set up false boundaries for our conversation.

I filter Mary's post with my legal research goggles on. From the librarian perspective, we know to ask open ended questions, identify what the researcher has already done to answer their question, and think about sources that might have the fastest path to an answer. Some of this involves asking fairly usual and standard questions to gather this data.

More often, I find myself asking people looking for research assistance to "tell me the story". While this may take longer than simply finding the specific thing that researchers identify as what they need, it sometimes results in a happier library client. The researcher asking for something specific brings their own tools, experience and knowledge to the problem, while the librarian set of tools, experience and knowledge may be different.

There are problems with asking researchers to "tell me the story":

It works much better in person
If the research intake is by email, it requires a conversation follow-up
Conversations are often inefficient by email
If the researcher is working for someone else, they may not know the whole story
People are not comfortable telling a story unless they have a relationship with the listener

Despite the problems, I observe better research results when the asker and the responder both know the story behind the research.

Great Canadian Inventions Profiled in Globe and Mail

whitem@queensu.ca (Michael White) — Tue, 20 Mar 2012 14:29:38 GMT

The Globe and Mail has launched a new monthly feature profiling great Canadian inventions and inventors. The first inventor profiled is Al Gross (1918-2000) who pioneered the development of two-way radio systems (walkie-talkie) in the 1930s. Mr. Gross, who was also known as Irving J. Gross, received several radio-related patents in the 1940s and 1950s which were assigned to the Stewart-Warner Corp. of Chicago. (See US2698380, US2760058, etc.) "The Innovators" series is located at http://tgam.ca/innovators.

Why Charities Should Participate in Public Consultation

admin@envirolaw.com (Dianne Saxe) — Tue, 20 Mar 2012 11:00:47 GMT

With the launch of Conservative Senator Nicole Eaton’s inquiry into the “Involvement of Foreign Foundations in Canada’s Domestic Affairs”, increased scrutiny is being focused on the activities of Canada’s charitable environmental groups. In particular, is participating in public consultations, or encouraging others to do so, a political activity forbidden to charities?

The Conservatives have expressed concern about foreign foundations making donations to Canadian charities to influence Canadian law and policy, and whether this puts undue obstacles in the way of major Canadian energy projects. This was apparently triggered by frustration at the large number of registered interveners in the Enbridge Northern Gateway Pipeline Joint Review Panel public hearings. Some of the intervenors receive financial support from US foundations. Northern Gateway would involve two oil pipelines from Northern Alberta oil sands to a proposed Marine Terminal in Kitimat, British Columbia.

The Canada Revenue Agency (CRA) puts severe limits on political activity by registered charities. It’s therefore a reasonable question: is participation in public consultation – consultation required by Canadian laws – a political activity that is forbidden to charities? We think that careful participation in public consultation prior to a government decision is neither “political activity”, nor forbidden to charities.

First, what is a “political activity” for tax purposes? CRA’s Policy Statement CPS-022 – on Political Activities – states that an activity is “political” if the charity:

explicitly communicates a call to political action (i.e., encourages the public to contact an elected representative or public official and urges them to retain, oppose, or change the law, policy, or decision of any level of government in Canada or a foreign country);

explicitly communicates to the public that the law, policy, or decision of any level of government in Canada or a foreign country should be retained (if the retention of the law, policy or decision is being reconsidered by a government), opposed, or changed; or

explicitly indicates in its materials (whether internal or external) that the intention of the activity is to incite, or organize to put pressure on, an elected representative or public official to retain, oppose, or change the law, policy, or decision of any level of government in Canada or a foreign country.

CRA uses precise language that charitable organizations and their advisors are entitled to rely upon. Both the English and French versions of this policy explicitly limit the scope of “political activity” to activities intended to incite a public official to “retain, oppose, or change” a law, policy or decision, i.e. one which already exists. Conspicuously omitted from these definitions are activities that incite a public official to make an initial decision. Public consultation and other efforts to influence how a future decision will be made, such as whether to build Northing Gateway, are therefore not included as (forbidden) political activities.

Second, even if public participation were “political”, CRA considers a communication to be a proper part of “charitable activity” if it is subordinate to the charity's purposes and:

relates to an issue that is connected to the charity's purposes;

is well-reasoned; and

does not contain information that the charity knows or ought to know is false, inaccurate, or misleading.

It is also encouraging to note that public participation in an environmental assessment process is not “lobbying”. The Lobbying Act creates specific requirements for those who are paid to try to influence law and policy. According to section 5 of the Act, a person must register as a lobbyist if they are paid to either

(a) communicate with a public office holder regarding

(i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,

(ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,

(iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,

(iv) the development or amendment of any policy or program of the Government of Canada,

(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or

(vi) the awarding of any contract by or on behalf of Her Majesty in right of Canada; or

(b) arrange a meeting between a public office holder and any other person.

Public office holder is broadly defined in the Act, and likely includes the Panel members. A recommendation or decision whether to approve a pipeline, however, is not one of the restricted areas of communication described in section 5. And it is the Panel itself which has arranged the public hearings. Thus, participation in the hearings, or helping someone else to do so, is not “lobbying”.

Nevertheless, Sen. Eaton’s inquiry is going ahead. In her speech to launch the inquiry, she implied that it is “anti-Canadian” to oppose the pipeline and oil sands development that her party supports:

We need to make it clear that [foreign groups] cannot come here to our country and incite Canadians to turn against us, or even worse, pay agitators to come here and provoke demonstrations and protests against our own country.

This is not a partisan issue, nor is it a regional one. It is certainly not an environmental issue. This is a Canadian issue; a patriotic issue. This is about our sovereignty and economic well-being.

With all due respect to the Honourable Senator, public consultation and environmental assessment are among our most important tools for sustainable development. Inclusivity, and engaging with diverse perspectives, are surely more fundamental Canadian values than unquestioning support for resource extraction.

WTO Database of Preferential Trade Agreements

michel-adrien.sheppard@workopolis.com (Michel-Adrien Sheppard) — Tue, 20 Mar 2012 00:07:33 GMT

The World Trade Organization (WTO) has created a database of Preferential Trade Agreements.

Preferential trade agreements are non-reciprocal preferential schemes. They are distinct from regional trade agreements.

The database supplies information about the history of each agreement, with details about the products covered and the list of countries eligible for special treatment

[Source: beSpacific]

Supreme Court of Canada: New Library Titles

michel-adrien.sheppard@workopolis.com (Michel-Adrien Sheppard) — Mon, 19 Mar 2012 23:47:24 GMT

The list of new library titles added to the Supreme Court of Canada collection for the period of March 1-15, 2012 is now available on the Court website.

The web page explains: "The Supreme Court of Canada Library does not lend materials from this list, which is provided for information only."

But, once the material goes into the general collection, after about a month, the works do become available for inter-library loan to authorized libraries.

It is possible to subscribe via e-mail to receive the list.

Ontario Judgment Critical of Document Management System Withdrawn From Publication

slaw.admin@gmail.com (Simon Fodden) — Mon, 19 Mar 2012 19:04:48 GMT

[ UPDATE (March 19, 5 pm): As you will see from the comment below from Colin Lachance, the judgment has now been restored. So far as I can determine, no element of the court's criticism has been altered. ]

Slaw has learned that the judgment of Justice David Brown in Romspen Investment Corp. v. 617666 Canada Ltd 2012 ONSC 1727 has been withdrawn from all publishers' electronic databases pursuant to the request of the court administration. The request said that the decision had been "sent to publication in error," and asked that publishers "remove [it] from your records and destroy … [more]

Slaw readers will remember that this was the judgment in which Justice Brown roundly criticized the document management system used by the courts. Some of that criticism was published in the Globe and Mail and the full critical portion of the opinion was contained in a recent post on Slaw.

Although a search on CanLII for the citation 2012 ONSC 1727 produces a hit with the hyperlinked case name, clicking on the hyperlink produces the error message you see above. I've not yet checked Quicklaw or Westlaw myself, and would be glad of confirmation by way of comments.

Addressing the High Cost of Cloud Computing Due Diligence

Mon, 19 Mar 2012 17:00:03 GMT

Last week I wrote on The High Cost of Cloud Computing Due Diligence, and asked readers what thoughts they had on how the burden of cloud computing due diligence could be reduced.

In his post on The Myth of Due Diligence, David Whelan questions the assumption that we should apply more strict due diligence requirements to the cloud than to traditional desktop-based software:

If due diligence is called for – and something is, whether it needs that name or not – then it should apply equally to the wireless routers, operating systems, and locally installed software within law
… [more]

Last week I wrote on The High Cost of Cloud Computing Due Diligence, and asked readers what thoughts they had on how the burden of cloud computing due diligence could be reduced.

In his post on The Myth of Due Diligence, David Whelan questions the assumption that we should apply more strict due diligence requirements to the cloud than to traditional desktop-based software:

If due diligence is called for – and something is, whether it needs that name or not – then it should apply equally to the wireless routers, operating systems, and locally installed software within law practices. When the concept is applied only to the cloud, it creates the idea that this is somehow a new obligation and, potentially, easier to do with Internet-based systems.

Nate Russell suggests in a comment that one way of addressing the burden of due diligence would be to elevate the task of performing due diligence to a centralized authority:

One way to lessen the burden of due diligence in this context would be if a certifying authority (like a law society or professional association) did due diligence on a number of SaaS providers based on a jurisdiction's rules or guidelines, and then certified that provider.

Would bar associations and law societies be willing to take this on? For many I imagine the potential liability ramifications would create a lot of inertia for such a project. There would have to be strong demand from the bar association's or law society's membership for such an undertaking to get off the ground.

Without the support of an association or other body helping create some economies of scale around the due diligence process, the simple reality is that most firms, especially solos and small firms, simply won't undertake the onerous due diligence demands being placed on them. They will do their best to act "reasonably," as their ethics rules dictate, but they will justifiably question whether it is reasonable to invest tens of hours in screening each and every cloud provider utilized by their law office.

PatentScope Adds PCT Licensing Information

whitem@queensu.ca (Michael White) — Mon, 19 Mar 2012 16:04:34 GMT

PatentScope now includes licensing information for PCT applications. PCT applicants who wish to make their applications available for licensing may request so by filing the appropriate forms. (See the December 2011 PCT Newsletter.) As of March 19, only a handful of published applications have licensing information.