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The next frontier

Cover Story
|Written By Jennifer Brown
The next frontier
Photos: Sandra Strangemore

The practice of law is always evolving as new influences such as technology add complexity to how lawyers solve problems for their clients. From intellectual property to labour and employment to business law, and beyond technology and evolving business models have created new opportunities for lawyers to do what they do best — resolve disputes and grow their practice areas.

The best way to think of new practice areas today is not so much within prescribed categories of law, but rather multi-area practices that will be called upon to service new businesses as they emerge and mature. Think of the legal challenges posed by digital currency, apps, new forms of social media, new Internet platforms, online and mobile gaming, emerging forms of communication, not to mention evolution of societal and family norms, and the globalization of business and commerce.

Just ask Vancouver-based lawyer Steve Szentesi of Steve Szentesi Law Corp. who works in advertising and marketing law, and recently worked on a file that required him to apply Canada’s Anti-Spam Legislation to a shopping related app. “The technology was new — a start-up — and so was the law [CASL], so it was an example of trying to apply the law to new technology,” he says.

Clients are also increasingly demanding advice for global Internet applications and social media. While the law is “local,” start-ups are consistently global now. “A few of my recent clients don’t want to know what the law is in Canada, they want to know how they can launch their ‘thing’ and comply with global laws. But of course there is always a tension between budget and risk because laws remain local. I think this is a really interesting intersection,” he says. “If you don’t have big investment banking backing but have a brilliant new technology and want to take the market lead, what do you do? Hire a couple dozen lawyers or take the risk?”

New frontiers definitely present new revenue generating opportunities for lawyers. In August, Dentons announced it was launching a space law group spread across 10 offices around the world that would involve 15 lawyers. The space business team will focus on transactional, insurance, intellectual property, regulatory, import/export and litigation, and arbitration needs on behalf of businesses in the commercial satellite and space arena. The largely U.S.-based team will include Ottawa-based Dentons lawyer Kirsten Embree, head of the firm’s communications law practice group. Embree maintains an extensive practice in telecommunications, broadcasting, digital media, and privacy law.

Consider, too, San Francisco-based labour and employment law firm Littler Mendelson PC, which created a robotics, artificial intelligence, and automation practice group last October but with a view to how those technologies will impact the labour market. According to firm chairman Garry Mathiason, by 2025 half of the jobs currently performed in the United States will be performed by machines and software. He predicts this will introduce labour law issues such as workplace privacy, anti-discrimination protections, wage and hour requirements, human displacement, and collective bargaining requirements, among others. He spoke on a panel with in-house counsel in Toronto last June, exploring the emerging global challenges facing in-house counsel.

Mathiason talked about “Sophie,” a robot that is a product of NEC Corp. and La Trobe University Business School, which is designed to pre-screen job candidates and record the conversation while also noting the applicant’s cognitive verbal responses and monitoring changes in facial expression, blood pressure, heart rate, and more. “You should be hearing a lot of landmines going off in the legal department over this,” said Mathiason, noting the plentiful privacy issues involved.

The demands of rapidly growing technology platforms are also bringing practice areas together that might never have intermingled before. Canadian Lawyer takes a look at some of the changing, growing, and emerging areas of legal practice today.

Electronic commerce/mobile wallet

Firms like Blake Cassels & Graydon LLP are seeing increasing collaboration of their specialists in the areas of financial services, regulatory, and technology. Customer-facing innovations such as mobile wallet require lawyers from different practice groups to work together. This month, Blakes partner Jacqueline Shinfield will present as part of a panel on the challenges of mobile wallet at the Association of Corporate Counsel annual meeting. “We have to work together so closely now,” says Shinfield's colleague Parna Sabet-Stephenson who specializes in outsourcing, technology law, and e-commerce. “In the past, we were perhaps considered separate areas of practice and working parallel but now Jackie keeps abreast of developments in my field and I have to do the same with hers to provide the useful advice clients are looking for. We have to have knowledge that goes beyond our own practice areas.”

Shinfield, who is focused on regulatory compliance in the retail financial services and payments industry, has acted for wallet providers, program managers, and issuers whose products are going into wallets to make sure they have the proper security measures and disclosures. “Depending on who you are acting for in the wallet the things you are looking for have different importance,” she says.

Canada is behind the U.S. in terms of mobile wallet adoption from prroviders such as Visa, MasterCard, PayPal, and Google. A bank pre-paid card can be loaded into the wallet, which can also contain loyalty program cards, and  store your transit pass and drivers licence. “That’s where people want this to go,” says Shinfield.

Regulatory legislation like CASL will apply to mobile wallets in 2015. Every player will have to make sure what they are doing complies. There may also be privacy and disclosure requirements depending on what is being downloaded to the wallet. For example, if you are loading a pre-paid card to your wallet that is from a federally or provincially regulated entity, the specific disclosure requirements need to be evaluated.

“What’s challenging now is that there is no specific law dealing with mobile,” says Shinfield. “So you have to take the law that is here now — it’s a round-hole, square-peg approach — and try and fit it to work in the mobile world. The thing most challenging is when you have a piece of legislation that dictates font size requirements and making sure they are met on a mobile screen. The issue in Canada right now is there isn’t a lot of regulation and there isn’t a lot of guidance on what is compliant in the mobile space. You have to answer some hard questions when there is no law pointing you to the right place. You have to be creative in how you interpret the law and stay on top of all the developments — things are coming out on app development and privacy all the time.”

Entertainment • gaming law

Originally a freedom of expression lawyer who started out acting for newsrooms, Jon Festinger of Festinger Law & Strategy LLP teaches video game law at the Faculty of Law at the University of British Columbia. He says there is a component of hardcore gamers in his classes and many are entrepreneurial by nature, creating a new breed of lawyer who wants to leverage their love of gaming into business. “In entertainment law courses these days, largely because of digital media, you will find students who have actually been part of a media company or write blogs or have written a pilot for television because the barriers to entry have gone down in the last 10 to 15 years,” he says. “Video games were the basis for all of these things we think of as giant changes in the world today — social media, 3D, smartphones — all of these things had their first betas in video games because there was money in video games,” he says.

Festinger says the lawyers who know video game law best right now are almost exclusively in-house. “You have to have such an intimate understanding of what the clients want and paying an outside law firm to come up to speed on the particularly specialized issues of gaming law is not cost effective,” he says. “There are some outside counsel who do this but it’s not a file you just land on some lawyer’s desk. It matters whether they play games nor not — it matters that they grasp the issues.”

What doesn’t matter, however, is how small a video game company is because once launched it becomes part of a worldwide business. “That’s the huge paradigm shift in this business,” says Festinger. Finnish video game maker Rovio Entertainment Ltd. and its hit franchise Angry Birds is a perfect example. “Suddenly as soon as you launch that game in the app store you are a worldwide business,” he says.

When it comes to intellectual property in the gaming world, things get really interesting for lawyers. “We’ve sort of moved into a contract world that deals with intellectual property rights but in the world of contract law. We’ve converted it,” says Festinger. “It’s created a ton of work for lawyers. There’s huge criticism around 40-page terms-of-use documents and so now companies like Microsoft are trying to simplify it, which is not bad for lawyers because guess who is doing it? It’s still us.”

The other part of the boom are the deals going down — digital media generally remains a healthy part of the economy.

Social media • Defamation • Intellectual property

Consider this the area of law where IP lawyers try and apply existing copyright, trademark, and contest law to new media and make it work, says Daniel Cole, an associate with Gowling Lafleur Henderson LLP.

Cole’s practice is focused on advertising and marketing law. He saw social media as a good extension when five years ago the firm started getting questions from clients about using Facebook to do contests and promotions. “The real trick is you have to look at the contract with the social media site through their terms of use and at the same time follow all the old rules,” he says. Today, up to 60 per cent of what Cole does is related to social media including writing policies for corporations on managing social media from the perspective of both clients and their employees. “The fundamental tenet I try to explain to people is that the media has changed but the law hasn’t changed,” he says.

From a business development perspective, Cole initiated meetings with clients and has done more than 100 visits where he spends an hour with a company’s marketing department going over the ins and outs of social media. That led to a one-day conference exploring its marketing, privacy, and employment-side issues.

Cole’s colleague Eric Macramalla, a partner with the IP group at Gowlings, is focused on trademark litigation specific to the Internet including social media and domain name disputes — an area he has dubbed “trademarks 2.0.” He deals with parties who are infringing on client intellectual property online — sometimes fake versions of well-known brands. “I can get a hosting company to take down a site for infringement — in North America it’s pretty easy to do,” he says, noting there is a huge amount of work in this area relating to the fashion industry.

Of course cyberlibel or Internet defamation also present opportunities for lawyers who have managed traditional forms of libel in print media. Brian Radnoff, a partner with Lerners LLP in Toronto, has been working in the area for about 10 years. “It’s an evolution in defamation, because just as we have moved away from traditional media, a lot more cases and claims involve things that happen on the Internet, or some aspect of them involves Internet publication.”

Material online has the potential to reach more people than a print publication and once online it’s difficult to get it removed. “At a minimum it’s becoming a component in almost every libel case and, to some extent, it’s becoming the main or primary component of libel cases,” says Radnoff. “It’s definitely more pernicious in that it is very difficult to track it down. A lot of people do it anonymously. It’s one of the advantages of blogging or commenting on the Internet — there is a broader scope for anonymity.”

There are also lots of questions being raised around the traditional law and how it applies to claims related to new media — partly because Canada’s Libel and Slander Act hasn’t been updated in a long time and when it was written the Internet did not exist. For example, “In Ontario, with libel for a newspaper or television publication there are notice requirements — you must give notice within a certain period and if you don’t, you are barred. There are lots of questions about the extent to which the notice requirements apply to Internet publications,” says Radnoff.

Jurisdiction is another issue and arose in the 2012 case of Breeden v. Black, which involved Conrad Black. In Breeden, the plaintiff commenced defamation actions in Ontario against the defendants, who were directors, advisers, and a vice president of a corporation headquartered in the United States. The Supreme Court of Canada was asked to determine whether Ontario had jurisdiction and ruled that generally, it would. “This means plaintiffs in Ontario can sue defendants in the U.S. for defamation,” he says.

Litigation • Investigations

“Big ticket litigation is on the rise in Eastern Canada,” says Andre Roy, managing partner with Stikeman Elliott LLP in Montreal, referencing the Lac-Mégantic train disaster as one example where cross-border focused litigation has become more sophisticated. In part, this is due to U.S. clients coming to Canada. “A lot of our practice here is internationally focused.”

There’s also a great alignment of corporate and litigation practices, says Roy, referencing corporate activist cases. “Another area where you see litigation and corporate groups being put together is with corporate inquiries/investigations into corporations, we’re seeing more of that,” he says.

A growing area in litigation crying out for lawyers with specialized knowledge is e-discovery. With the enormous amount of data now involved in litigation — just think about how many e-mails and electronic documents you look at on an average day — e-discovery is a complex and mostly misunderstood area of the law yet is often integral to the litigation process. It is not taught at law school and almost every e-discovery lawyer in Canada is self-taught through necessity, which is not efficient and can lead to serious mistakes.

In a recent issue of Canadian Lawyer 4Students, e-discovery lawyer Dera Nevin pointed out it’s an area that could be of great interest to budding lawyers because they’ve grown up understanding the complexity of technology but “a lot of people perhaps mistakenly misunderstand e-discovery as an administrative [area] and not a legal area.” She argures  there is now enough jurisprudence, practice, and commentary to ground academic treatment of the subject beyond the occasional course.

Estate & elder law

Not all practice areas are being influenced by technology. Kristine Anderson, a partner with Basman Smith LLP in Toronto has a broad civil/commercial litigation practice that touches on condominium law but she does very little construction lien work anymore. She says she’s in the middle of a “practice reboot” of sorts and wants to focus more on estate litigation, which she sees as a growth area.

She’s been practising law for 13 years and recently took stock of what she wants to do in the future. “I think this happens to a lot of general civil litigators,” she says. “You start to lop off the things you don’t really want to do. A long time ago, I lopped off personal injury. You’re hoping at some point you develop a practice of work you enjoy that is also relevant.” About a year ago she thought her practice wasn’t developing as well as she would like it to. She tried to look at areas of law that would be evolving. One of those areas was estate litigation. She had done some cases in the past and found it to be a nice balance with commercial litigation because estate litigation is more “emotional.”

“Why I think it’s a growth area is because we have an aging population in Canada and things like guardianship applications, disputes over powers of attorney and also will challenges — the typical things you associate with estate litigation,” says Anderson. “I think it’s also a good growth area for a firm of our size with the availability of the other service areas we have.” Anderson also has her eye on the area of elder law.

She says there are lawyers who feel civil litigation is a dying field, in part due to costs driving some to seek alternatives to litigation, but she feels there is saturation in the market. “There’s a bigger pool of lawyers for those who are litigating,” she says. “What I think is happening is that traditional civil litigation is dying but I think there is growth opportunity as well and the ability to grow depends on whether you are able to think outside the box and provide more cost effective scenarios for your clients.”

She’s decided to take the approach that she wants to be her client’s resource before the matter gets to the point of litigation — resurrecting the relationship of “general counsel” with a client where she becomes their adviser on legal and business issues in a legal framework. “The growth that could happen in civil litigation is more of an intellectual shift,” says Anderson. “There are also people out there needing help doing disputes.”

International risk management

Managing corporate risk internationally is an area of law Marc Philibert, managing partner of Davis LLP in Montreal, says is a “game changer.” The firm has been focusing on the practice because it felt there was a growing demand from its client base. “I would say this is the emerging one in our firm because it has a very broad reach that seems to be extremely unknown in the legal and business community,” he says.

Due diligence in transactions is extremely important especially in light of anti-corruption laws in the U.S., U.K., and Canada. “We’ve been dormant in Canada for so many years but the Canadian government is ramping up its enforcement and we now have convictions. We decided to introduce very strong mapping in our projects where we look at where a company has offices, the type of operations, key suppliers, and where are they located? We make an assessment and risk report based on those things.”

For the most part lawyers in the M&A practice have stepped into this area of law based largely on their interest. Some come from litigation.

  • Mr.

    Patrick J. McKenna
    Jennifer: A good insightful article. Over the past two years I have observed and worked with practice groups pursuing lucrative growth opportunities in tax inversion deals, personalized medicine, shadow banking, brand and digital governance, drone law, 3D additive manufacturing, stem-cell bio ethics and many other emerging areas. Would said growth is dead? regards, Patrick

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