A Toronto lawyer has lost the latest round in his copyright dispute with the Aga Khan.

In a new ruling, the Federal Court of Appeal dismissed Alnaz Jiwa’s challenge of a Federal Court ruling that granted summary judgment in favour of the Aga Khan last year. Jiwa appealed the ruling along with Montreal businessman Nagib Tajdin.

The dispute centred on Jiwa and Tajdin’s reprintings of the Ismaili spiritual leader’s religious teachings (see “Lawyer sued by Aga Khan keeping the faith”). They claimed the Aga Khan consented to the publications during a ceremony in Montreal in 1992. The Aga Khan disagreed with that interpretation, and ultimately Federal Court Justice Sean Harrington declared that the pair had infringed the spiritual leader’s copyright and granted a permanent injunction precluding the publication of the book Farmans 1957-2009 as well as accompanying MP3 audio bookmarks.

The pair claimed Harrington made 19 errors by, among other things, failing to properly apply the test to determine whether there was a genuine issue for trial and proceeding as though he were the trial judge; relying on inadmissible hearsay evidence; drawing inferences without the necessary facts; and concluding that the Aga Khan never consented to the publication.

The consent issue boiled down largely to the events in 1992 at which a third person, Karim Alibhay, presented the book on a plate to the Aga Khan. Tajdin, according to the ruling, took that exchange as consent to the publication. But as Federal Court of Appeal Justice Johanne Gauthier noted in the latest ruling, the book presented to the Aga Khan didn’t indicate who had printed it. At the same time, there was no evidence that the spiritual leader knew Alibhay was acting on Jiwa and Tajdin’s behalf.

“There is no evidence that the Aga Khan knew or ought to have known that this book was not simply a compilation printed for the personal use of the Alibhay family, of which three members were presented to the Aga Khan,” Gauthier concluded.

In addition, Gauthier, writing on behalf of a unanimous court, rejected the appellants’ claims related to the defence of laches/detrimental reliance. As a result, the court dismissed the appeal with costs.

Canada

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United States

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International

Norwegian man jailed over Danish newspaper bomb plot, Reuters

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Ontario’s Information and Privacy Commissioner says she has “serious concerns” about proposed federal “lawful access” legislation that would expand police surveillance powers and increase access to private information.

'We’re only seeing the tip of the iceberg with what’s to come,' says Ann Cavoukian.

In a public symposium held at Toronto’s MaRS Discovery District auditorium today, Ann Cavoukian repeated her concerns that lawful access legislation in its current form would raise “serious privacy implications” if not amended before its possible re-introduction to Parliament in the next month.

Previous lawful access bills were introduced during Parliament’s last session but died when the election was called, creating a “looming system” of underlying surveillance that should “concern us all,” Cavoukian warned during the symposium.

“We’re only seeing the tip of the iceberg with what’s to come,” said Cavoukian. “The goal is to prevent the harm before it actually happens and show that, in my opinion, you can have both privacy and connectivity.”

To do that, Cavoukian adds, current lawful access legislation must be amended to ensure police accountability is maintained when accessing private information for investigative purposes.

“The greatest threat to privacy is coming from within, from our federal government,” said Cavoukian. “What concerns me most is the data linkages that are created. Most people don’t realize those numbers, that data, is connected to people, they aren’t just ones and zeros, they connect to people with a keystroke, and it paints a very detailed picture about that individual, more than most understand.”

In addition to expanding police surveillance powers to allow access to private information without a warrant, the previous lawful access bills, if they were passed, would allow law enforcement agencies to obtain warrants to track the locations of individuals and their transactions, compel other parties to preserve electronic evidence, and require internet providers and other makers of technology to provide “back doors” to police seeking communication information; points that bother Cavoukian.

“My specific objection to the legislation is the lack of court authorization for access to private information,” she added. “The warrant is a critical and integral part of the process. It ensures accountability and oversight that is so critical to our democracy and freedom as a society.”

Since discussions of lawful access legislation began more than a decade ago, several privacy and consumer advocates, opposition politicians, and Canada’s privacy commissioner have spoken out against the legislative proposals, a significant point in future considerations for the legislation’s possible re-introduction in the upcoming month, Cavoukian added.

“Remember privacy is not only an individual right,” she said. “It’s a societal right. It’s absolutely integral to our rights, to our society, and to our democracy. I really want to shout from the rooftops about it. Data linkages create such a detailed picture of an individual and I would encourage everyone to stand up and fight to protect our rights and our privacy.”

Cavoukian said while she doesn’t expect lawful access legislation to be thrown out entirely in the future, she does hope amendments will be made to ensure court oversight and privacy is fully maintained.

“We have to work together to ensure our democratic freedoms are preserved, and when lawful access legislation is re-introduced, likely in February; I hope the legislation will be amended to ensure warrants are added,” said Cavoukian. “It may be a long shot, but it’s so important, and I hope more people tackle this issue head on.”

Canada

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United States

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International

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Law students are outraged over a tongue-in-cheek advertisement that law firm Davies Ward Phillips & Vineberg LLP recently ran in Osgoode Hall Law School’s student-run newspaper Obiter Dicta.

Davies' tongue-in-cheek ad did not tickle the funny bone of some law students.

In a law firm’s rare effort to poke fun at itself, Davies — also referred to by aspiring lawyers as “Slavies” for overloading its students and associates with work — exploited its nickname in an ad.

But some students did not find it very funny.

Osgoode students Kisha Munroe and Samara Secter submitted letters to the editor of Obiter Dicta expressing their disapproval.

“I take a real exception to the fact that there are people for whom this joke would even be funny and that this offensive retooling of a name gained enough momentum to take hold in the sub-culture of law students. This is beyond my control and not something that is likely to change until attitudes regarding offensive speech and awareness of its impact change,” Munroe wrote.

“That Davies saw fit to run an ad invoking the shameful, genocidal, dehumanizing practice of forced, unpaid, lifelong labour and suffering that was essential to the power the Western world now enjoys is despicable.”

Other students, including Osgoode student Andrew Emery who also wrote a letter to the editor, found no offence at all.

“There is nothing offensive about playing on the perception that Davies students work like slaves. It is as offensive as just saying the word ‘slave.’ Just saying a word doesn’t make it offensive,” Emery wrote.

Apologies from Davies’ director of student affairs Frances Mahil ensued after the students' negative reaction. The firm's note in Obiter Dicta stated:

“It has come to our attention that the advertisement we recently placed in the Obiter Dicta made some students and faculty believe that we were making light of the very serious subject of slavery.

The intent of the advertisement was instead to try to suggest that the nickname students have used for our firm for many, many years should not dissuade students from considering applying to us for summer or articling positions. We were aiming for some self-deprecating humour. It did not occur to our team that we would be seen as making light of slavery, rather than simply poking fun at ourselves. Obviously it should have.

We thank those who brought this to our attention and accept their criticism. We sincerely apologize to those who were offended. We will not run the advertisement again.”

Davies declined Legal Feeds’ request for comments.

But Joy Wakefield, a third-year student at the Queen’s University Faculty of Law, says an apology is not sufficient.

“It’s one thing to apologize and say, ‘OK, we won’t run the ad again.’ It’s another thing to say, ‘We’re taking steps to make sure that this doesn’t happen again; we’re taking steps to make sure that we’re addressing attitudes that allowed this to happen in the first place,’” she tells Legal Feeds.

“I would like to see an assurance that they’re taking students’ concerns regarding workload (A) and (B) the diversity and cultural sensitivity issues seriously, to the point that they’re actually going to do something about it,” she adds. “Because an apology letter is lip service but let’s see what’s actually going to change.”

Wakefield says it boils down to a lack of diversity at some law firms and it’s time for law schools and law firms to start thinking about training students and lawyers on cultural sensitivity.

The story has got legs, drawing comment from various blawgs in Canada (Law is Cool: “These days the slaves fight back”) and the United States (Above the Law: “Truth in advertising”).

ATL’s Elie Mystal thought students overreacted a tad to the ad: “Jesus! Slavery was bad, I get it. But the Davies ad isn’t saying it views new recruits literally as slaves. I’m pretty sure that would be illegal! Can’t we all at least agree that that the Davies ad was just a simile? An analogy? A figure of freaking speech?”

Canada

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Charges laid against Catholic school board over deadly explosion, Ottawa Citizen

B.C. woman sent to jail for hiding senior's body in plastic bin, The Province

United States

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International

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Britain says European Court needs major overhaul, Reuters

A Winnipeg lawyer has been suspended by the Law Society of Manitoba until he can face a hearing on allegations that he took more money in fees from residential school survivors than he was entitled to.

Residential school at Cross Lake, Man., circa 1925. (photo: Archives of Manitoba)

Howard Tennenhouse, who had well over 100 former residential school clients, was suspended on Jan. 11. The allegations relate to around 50 clients.

Payouts to victims, which average around $100,000, are administered by the Indian Residential Schools Independent Assessment Process. Lawyers typically receive a 15-per-cent fee from the federal government on top of the award made, but they can apply to increase fees by up to an additional 15 per cent, which comes out of the client’s money.

“This lawyer would make an application in some of these cases for a higher payment, and the allegation is that, regardless of whether or not he was successful, he would take the higher payment anyway,” says Allan Fineblit, the law society’s CEO.

Finebilt says Tennenhouse was charged in early 2011, and had restrictions placed on his practice. The law society moved to suspend him when he stopped paying back the money to victims, a condition on his right to continue practising. Finebilt says the law society’s compensation fund will cover any shortfall.

“No clients will be out any money,” he says.

A hearing on the charges, which have not been proved, is due the third week of February.

It’s not the first time Tennenhouse, a 1980 call, has been in trouble at the law society. In 2010, he received a 70-day suspension after pleading guilty to eight charges of misconduct related to trust accounting breaches.

Tennenhouse is just one of number of lawyers involved in residential school cases whose conduct is being examined. See “Lawyers’ fees under scrutiny.”

Canada

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United States

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International

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If you were given a blank sheet of paper and asked to design your in-house legal department from scratch, what would it look like?

That’s a question posed by futurist and author Richard Susskind, to a group of about 50 in-house counsel during a Canadian Corporate Counsel Association Master Class yesterday in Toronto.

Futurist tells in-house to rethink service delivery.

Susskind, who wrote The End of Lawyers? Rethinking the Nature of Legal Services in 2008, told the group if they feel they’re getting inefficient service from their outside law firms, they should sit down and look internally first and decide how they can collaborate internally and externally to deliver more legal services for less cost.

“What I find remarkable is that you all agree that in an ideal world you would do XYZ, but what are you actually doing? If you agree there’s a better way of delivering legal services, the challenge is how do we get there from here? What’s your strategy for the future and how do you have that strategy discussion with your department?”

Susskind says in-house counsel need an “collaboration strategy” that will take in to consideration how they will source all manner of legal services and use technology to prepare for the next five years — a period he predicts will bring significant change to the profession.

In-house lawyers face a dilemma in three parts, says Susskind: pressure to reduce internal head count; pressure to reduce what goes to outside firms; and dealing with more matters of increased complexity than ever before.

“It’s the more-for-less challenge,” he says. “It will define the next generation of legal services.”

While some general counsel claim they are upping their in-house head count because they feel they are farming out too much work at higher cost, Susskind says he doesn’t see that as the solution. Instead, there needs to be a better assessment of staffing levels for legal tasks that may include more hiring of paralegals rather than adding more lawyers, and better use of technology.

He also spoke about the commoditization of legal services and an argument that many matters shouldn’t fall under the category of specialized services.

“A lot of us regard legal work as bespoke but there are more efficient ways of dealing with standard legal matters and I believe a lot of legal work is going this way,” he says, pointing to tasks such as document review and drafting of contracts. “The truth is there is a lot of routine and repetitive work going on by lawyers at unnecessary expense at high hourly rates.”

He sees certain matters becoming standardized, systemized, packaged, and commoditized. Where work is considered routine the competition is going to be strong and that is where in-house counsel need to look closely for the best vehicles for delivering those legal services.

Technology may play a role in terms of online dispute resolution, automated drafting, electronic legal marketplaces, and price-comparison systems.

By the end of this year, Susskind says the legal profession must move into what he sees as phase two of a progression towards more re-sourcing and computerization of legal services.

The period from 2007 to this year was “phase one” — denial — as the economy “fell off a cliff.”

“Most mainstream law firms want it to be 2006 again and hope that what we’re seeing now is an unfortunate blip. I don’t see it that way. From 2013 to 2015, it will be the phase of re-sourcing. From 2016 to 2017, it will be a stage of mass computerization,” he says.

In-house counsel also need to be more vocal about what they want from their law firms, suggesting they don’t just need reactive help but legal risk management services.

“General counsel tend to underestimate the power they have over the legal market,” he says.

“One of the running themes I hear from general counsel about their law firms is: ‘Our external law firms are good, they’re aggressive but they are a little too reactive — they simply respond to questions we put to them — they aren’t proactive. We don’t want dispute resolution we want dispute avoidance, and we don’t want legal problem solving, we want legal risk management. We want defence at the top of the cliff, not at the bottom of the cliff.’”

Susskind suggests in-house counsel approach their outside law firms with a technique to start to change the discussion around the way service is delivered.

He suggests asking law firms to show how they would resource a series of cases that have already been completed and compare the proposals with what actually happened.

When it comes to alternative free arrangements he offered this advice: “When a law firm comes to you with alternative pricing ask them 1) Will it be less profitable for you? and 2) Will you be working differently? If the answer is no to both, then you should see it as just a different form of packaging. None of these firms wants to be less profitable.”

Research, he says, shows that going to alternative fee arrangement can trim 10 per cent off a legal spend.

Canada

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United States

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International

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