Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to complying with anti-spam or privacy legislation,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

So Canada’s old proposed Anti-Spam laws (found in Bill S-235, An Act concerning unsolicited commercial electronic messages) did not go anywhere.  But that’s not the end of that.  This year, the Senate is developing a bill – namely, Bill S-220 An Act respecting commercial electronic messages – that may ultimately become Canada’s anti-spam legislation.  This will be the third time that the government has tried to address the issue of spam – first through Bill S-235, then through Bill s-202 An Act respecting commercial electronic messages (neither of which went anywhere)

At the present time, Bill S-220 has had 2 readings in the Senate and committee meetings (Transport and Communications committee) have taken place.  Next, a report will be presented and debated on before the Senate has a chance to read the Bill again.

So in a nutshell, here’s what Bill S-220 proposes to do (if it becomes law):

Requirements for commercial electronic messages (e.g. an advertisement e-mail):

• They must clearly and accurately identify the sender, contain readily-accessible and accurate heading and routing info, and include info as to how the recipient can contact the person sending the message.
• They must include an accurate subject line.
• They must include a functional unsubscribe facility and a clear statement to the effect that unsubscribing can be done.

Prohibitions in the Bill:

• No person can send a commercial electronic message unless the recipient has consented to receiving the message.
• Implied consent  cannot be inferred from the fact that the recipient’s e-mail address has been published elsewhere or has been generally available to the public.
• A recipient can withdraw their consent.
• It is illegal for someone to offer to supply, supply or use e-mail or address-harvesting software or a harvested-address list.
• No person shall impersonate a trusted source.
• No person shall send out commercial electronic messages that include or constitute false representations (e.g. false representations that the commercial electronic message is being sent by or on behalf of another person, etc.)

Interestingly, there is a duty on every person who knows or ought to know that their business will be advertised or promoted in a commercial way contrary to the Act and who receives or is expected to receive an economic benefit to take reasonable measures to prevent the sending of the message and report any contravention to authorities.

With respect to enforcing these and other provisions of the Bill, anyone who sends a commercial electronic message without the recipient’s consent may be convicted of an offence and liable to a find not exceeding $500,000 and for a second and subsequent offence, to a find not exceeding $1.5-million.

There are other specific offences and fines related to requirements, duties, and obligations found in Canada’s proposed Anti-Spam laws.   Interestingly, apart from being prosecuted under this proposed bill and having to pay a fine, an individual or business could be sued in a civil action for breaching the proposed Act.

Notwithstanding that this Bill has not yet attained the status of law, at the present time, private individuals and companies still need to comply with the Personal Information Protection and Electronic Documents Act (PIPEDA for short), which imposes obligations and liabilities with respect to the collection, use, and dissemination of third party personal information without those parties’ knowledge or consent.

written by admin \\ tags: advertising, anti spam laws, Bill s-220, canada anti spam, conviction, dissemination, e mail, educational purposes, electronic documents, electronic message, legal advice, liabilities, offence, privacy legislation, private individuals, prohibitions, prosecution, provisions, publicity, receiving the message, recipient, spam laws, subject line

So in addition to my other two blogs about Ontario lawyers advertising their fees, I came across the following considerations that I thought were worth mentioning.  First, a lawyer’s ability to advertise is governed by the Rules of Professional Conduct.  The Law Society put out a 5 page .pdf about Ethical Considerations and Technology and stated therein that:

Advertising by lawyers in various forms of electronic media, including web sites, network bulletin boards, and direct e-mail, are governed by the Rules of Professional Conduct. The Rules contain guidance on advertising that applies equally to electronic advertising.

So advertising fees online is permissible, so long as the Rules are followed.  Interestingly, the Law Society’s Knowledge Tree concerning marketing and making legal services available includes an example where a lawyer wants to offer services through a website in two provinces.  In response, the Law Society cautions that:

A lawyer or paralegal making representations in generally accessible electronic media should include the name, firm name, mailing address, the jurisdiction(s) where the lawyer is entitled to practise law or the paralegal is permitted to provide legal services, and an e-mail address of at least one firm lawyer or paralegal who will be responsible for the communication.

Taking this advice from the Law Society one step further would mean that any advertising of fees using an electronic medium (such as an email or website) should state clearly detailed information about the services, the price, contact info about the law practice or lawyer offering such services, and who can be reached at the firm concerning that information.

The overall message concerning advertising legal fees (particularly online – where that information stays on night and day and can be accessed by anyone with a computer anywhere in the world) is simple: be transparent and accountable with respect to advertising your fees for services.

written by admin \\ tags: advertising, electronic advertising, electronic media, electronic medium, knowledge tree, lawyer, lawyers, ontario, ontario lawyers, rules of professional conduct

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.  If you need legal advice with respect to complying with anti-spam or privacy legislation,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).

Canada’s Anti-Spam Laws are found in the proposed Bill S-235, An Act concerning unsolicited commercial electronic messages.  That’s right: I said “proposed”.  It’s not passed into law yet.  In fact, at the time of writing this blog, the Bill had only been introduced into the Senate (first reading) on May 7, 2008 and had been debated at 2nd reading on May 13, 2008.  You can view the status of the Bill here.  So where does that leave us?  Well, private individuals and companies still need to comply with the Personal Information Protection and Electronic Documents Act (PIPEDA for short), which imposes obligations and liabilities with respect to the collection, use, and dissemination of third party personal information without those parties’ knowledge or consent.

So how would Canada’s proposed Anti-Spam Laws work?   The following information is a brief summary of certain provisions based on the current reading of the text of the Bill (remember: it may get changed if and when it becomes law).

Requirements for commercial electronic messages (e.g. an advertisement e-mail):

• They must clearly and accurately identify the sender, contain readily-accessible and accurate heading and routing info, and include info as to how the recipient can contact the person sending the message.
• They must include an accurate subject line.
• They must include a functional unsubscribe facility and a clear statement to the effect that unsubscribing can be done.

Prohibitions in the Bill:

• No person can send a commercial electronic message unless the recipient has consented to receiving the message.
• Implied consent  cannot be inferred from the fact that the recipient’s e-mail address has been published elsewhere or has been generally available to the public.
• A recipient can withdraw their consent.
• It is illegal for someone to offer to supply, supply or use e-mail or address-harvesting software or a harvested-address list.
• No person shall impersonate a trusted source.
• No person shall send out commercial electronic messages that include or constitute false representations (e.g. false representations that the commercial electronic message is being sent by or on behalf of another person, etc.)

With respect to enforcing these and other provisions of the Bill, anyone who sends a commercial electronic message without the recipient’s consent may be convicted of an offence and liable to a find not exceeding $500,000 and for a second and subsequent offence, to a find not exceeding $1.5-million.

There are other specific offences and fines related to requirements, duties, and obligations found in Canada’s proposed Anti-Spam laws.   Interestingly, apart from being prosecuted under this proposed bill and having to pay a fine, an individual or business could be sued in a civil action for breaching the proposed Act.

written by admin \\ tags: advertising, blog, brief summary, briefs, conviction, dissemination, e mail, educational purposes, electronic documents, electronic message, first reading, law, lawyer, lawyers, legal advice, liabilities, offence, personal information protection, privacy legislation, private individuals, professional assistance, prohibitions, prosecution, provisions, publicity, receiving the message, recipient, spam laws, subject line

One of Ross Kodner’s 30+ law and technology predictions for 2009 includes lawyers becoming so desperate for business that they start auctioning their services on eBay.  Obviously, for lawyers to offer their services in this manner will reflect the increasing commoditization of their services.  It is perhaps those lawyers engaged in high volume transactional work who will be the first to experiment.  The real estate, wills and estate, simple incorporation, simple divorce, etc. lawyers will pitch their services to the highest bidder.

Yet resorting to eBay to sell one’s services raises two contentious issues.   First, doing so may draw the ire of the Law Society of Upper Canada: Rule 3.02(3) of the Rules of Civil Procedure (which lawyers must adhere to) provides that a lawyer may advertise their fee if it is reasonably precise as to the service offered for each fee quoted and states whether other amounts (e.g. disbursements and taxes) will be charged in addition to the fee.  Hence, advertising your fee with precision on eBay may be difficult as it is an auction-style of website service.

Second, eBay sellers receive feedback ratings and commentary from buyers.  Lawyers may feel uncomfortable putting their credibility ‘out there’ and allowing disgruntled clients or winning bidders with negative experiences to leave neutral or negative feedback.  At the end of the day, a lawyer’s credibility is all they have and anything that tarnishes that can effectively end their business.

All in all, I don’t see Ontario lawyers resorting to eBay in 2009 as a means of selling their services.

written by admin \\ tags: advertising, credibility, engagements, lawyer, lawyers, LSUC rules onfees, quotes, s on eBay, seller ratings/rankings, technology

A while back, I looked into what was required to form a multi-disciplinary partnership with non-lawyers (e.g. accountants, bankers, insurance agents, consultants, Realtors, etc.) to offer legal services.  I thought it would be great to have connections with professionals who could provide me with constant and good quality referrals.

But I quickly dropped the idea after discovering a simple truth: compliance with the Law Society of Upper Canada Rules of Professional Conduct and By Law 7 was more than I imagined I could handle!  Being a sole practitioner as it is – with trust fund accounting, insurance and law society filings, etc. – is already burdensome enough when compared with other occupations and professions.  But it’s got to be down-right scary for lawyers (in my humble opinion) in my position who are considering forming affiliations and multi-disciplinary associations/partnerships with non-lawyers.   Here’s why…

For starters, lawyers are ethically and legally not permitted to share, divide, or otherwise split any revenue, cash flows, or profits with non-lawyers generated in the context of providing legal services (LSUC, Rules of Professional Conduct, Rule 2.08(8); see also LSUC, Knowledge Tree, “Fees, Billings and Collection: Referral Fees, Fee Splitting and Division of Fees”).  Lawyers can do so through multi-disciplinary partnership, but not through affiliations or multi-disciplinary associations.

Affiliations

So what if a lawyer or law firm started paying non-lawyers for certain business services that facilitated the delivering/promoting of the former’s services?  Well this business structure could lead to an “affiliation” under the LSUC’s Rules of Professional Conduct (Rule 1.02) and By Law 7.  Simply put, an affiliation exists where one entity (e.g. person, business, organization, etc.) joins a lawyer or law firm to deliver/promote the latter’s services.  If this is the case, then the lawyer or law firm would still not be able to share, divide, or otherwise split revenue, cash flow, or profit generated in the context of providing legal services to the affiliated entity (LSUC, Rule 2.08(9)).

Furthermore, the lawyer or law firm would be subject to additional onerous ethical/professional obligations and reporting requirements, such as:

• Informing clients about the nature and scope of the lawyer or law firm’s affiliation with the affiliated entity and obtain their consent to proceed (Rules 2.04(10.1 ) and (10.2));
• Establish a system to search for conflicts of interest with the affiliated entity (Rules 2.04(10.1 ) and (10.3));
• Ensure that the lawyer or law firm’s advertisements do not mislead the public about who is providing the legal services (Rules 3.04(3), Commentary);
• Ensure that the lawyer or law firm own and maintain control over the law practice and that such practice is not operated on premises used by the affiliated entity for the delivery of the affiliated entity’s non-legal services (By-Law 7, s. 32); and
• Disclose to the LSUC a report disclosing information between the lawyer or law practice and the affiliated entity with respect to financial agreements, ownership/control/management of the law practice, the lawyer’s compliance with conflict-of-interest requirements, and the lawyer’s compliance with confidentiality requirements (By Law 7, s. 33(2)).

The bottom line is that forming an affiliation with non-lawyers is too burdensome and not worth it (because fees cannot be split).

What about a multi-disciplinary association? Well, if non-lawyers teamed up with lawyers to support/supplement the latter’s provision of legal services to clients, then the Law Society of Upper Canada’s multi-discipline rules could be triggered.  Such rules impose obligations on all of the members of the association.  For example, the non-lawyers would:

• Not be able to practice their profession, trade, or occupation except to support/supplement the lawyer or law firm in providing client services (By Law 7, s. 18(2)(1)).
• Have to give effective control to the lawyer or law firm over its practice of its profession, trade, or occupation (By Law 7, s. 18(2)3);
• Not be able to practice its profession, trade, or occupation independent of its agreement with the lawyer or law practice on the premises used by the association (By Law 7, s. 18(2)5); and
• Have to agree to be bound by the Law Society of Upper Canada’s Rules, Guidelines, By-Laws, etc. (By Law 7, ss. 18(2)2).

For their part, the lawyer or law practice would have to agree to comply with various onerous obligations, such as being responsible for ensuring that the non-lawyer members of the association use appropriate skill, judgment, and competence in performing its profession, trade, or occupation and in complying with the Law Society of Upper Canada’s Rules, Guidelines, By-Laws, etc. (By Law 7, s. 19).  As aformentioned, lawyers would not be able to split or share their revenues, cash flows, or net income with the non-lawyer members of the multi-disciplinary association.  So again, the costs far outweigh the advantages of this structure.

So that leaves us with the Multi-Discipline Partnership

A multi-disciplinary partnership involves non-lawyers supporting/supplementing lawyers in providing legal services to clients.  The non-lawyer members of the partnership would, once again, have to comply with the same onerous conditions as non-lawyer members of a multi-disciplinary association.   And so too would the lawyer .  The only difference is that lawyers and non-lawyers would be able to share revenues, cash flows, and profits through the partnership.

Overall, if non-lawyers are going to get involved in promoting and delivering legal services, then the Law Society of Upper Canada is going to have to re-tool its Rules and By Laws to open up the market.  We’ve already seen the large Bay St. law firms hire business managers to help run their law practices more as businesses than as legal professions; let’s keep moving down that road so that we can make legal services more accessible to the general public.

written by admin \\ tags: accountants, advertising, affiliations, agreement, association, associations, confidentiality, insurance, law society of upper canada, lawyer, lawyers, multi-disciplinary sharing profits, partnership, practitioner, publicity, referrals

Kate Lunau of MacLean’s Magazine is doing a 5-part series on Canada’s legal system (specifically, it’s many flaws).  She mentions in her most recent article (“A Closed Society”, February 23, 2009 at pp. 48-49) how the British have implemented significant changes to promote access to justice for the common person.  Such changes have included having supermarket chains launching legal stores within their premises, allowing outside companies to own and run law firms, and allowing external investment to encourage growth and competition.  These reforms were “hard-fought” and came with many safeguards (put there by lawyers).  Interestingly, Canada has not followed suit with consumer reforms of its own.  As Kate Lunau points out, low-cost legal service providers in Canada remain scarce and lawyers still have a monopoly on legal services.  Restrictions on lawyer advertising and forming affiliations or multi-disciplinary partnerships (which are onerous from an administrative point of view for lawyers), for example, have tended to maintain the status quo for the way in which legal services are offered/provided here in Canada.  Yet such regulations – which lawyers impose upon themselves in the name of the public good – stifle innovation and low-cost solutions for the common Canadian.

written by admin \\ tags: Access to Justice, advertising, affiliations, canadians, Kate Lunau, lawyer, lawyers, legal reforms, maclean, MacLean's Magazine, magazines, multidisciplinary s, partnership, publicity