The number of law firm mergers increased drastically in 2011 and more are expected in 2012, according to a Hildebrandt Institute report released yesterday.

Photo: Shutterstock

There was a 67-per-cent surge in law firm mergers in the United States in 2011, said the report, which cited 45 mergers involving U.S. firms compared to 27 mergers in 2010. Merger activity seems to be reverting back to levels before the recession where there were typically 55 or more mergers per year.

Law firm mergers in Canada also jumped in 2011. On June 1, Ogilvy Renault LLP sent shockwaves through the legal industry when it became the first Canadian firm to join the Norton Rose Group, with Macleod Dixon LLP following suit on Jan. 1 this year to create Norton Rose Canada. With the addition of the Canadian firms, Norton Rose now has more than 2,900 lawyers in offices around the globe.

McMillan LLP and Lang Michener LLP also combined on Jan. 1, 2011, now operating under the name McMillan. In addition, shortly before McMillan’s merger, Saskatchewan’s Balfour Moss LLP merged with Miller Thomson LLP on Dec. 7, 2010.

Eleven mergers have already been announced in the U.S. in the past two weeks, which is almost twice as many at this time last year. These include Faegre & Benson LLP in Minneapolis and Baker & Daniels LLP in Indianapolis to become Faegre Baker Daniels LLP; Greenebaum Doll & McDonald PLLC in Kentucky and Bingham McHale LLP in Indianapolis to become Bingham Greenebaum Doll LLP; Schottenstein Zox & Dunn Co. in Columbus, Ohio combined with Ice Miller LLP in Indianapolis; and Holme Roberts & Owen LLP in Denver combined with Bryan Cave LLP in St. Louis.

There were also some large mergers in the United Kingdom in 2011 with more expected in 2012, including Australian law firm Blake Dawson’s plans to combine its business with the U.K.’s Ashurst LLP in March 2012 and a full merger by 2014.

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The first wave of duty counsel withdrawals have begun in B.C. as lawyers step up their campaign against legal aid cuts in the province.

In November, lawyers rallied across B.C. to call for a boost to legal aid funding. Photo: Jean Sorensen

The Trial Lawyers’ Association of British Columbia says the system has faced $50 million in cuts over the last 20 years and faces the risk of collapse without a major infusion of cash.

“This decision wasn’t taken lightly,” says Rishi Gill, a Vancouver criminal lawyer who co-chairs the TLABC’s legal aid action committee. “But the only way we can seem to get the government’s attention is through sheer brute force. We’re now saying we’re fed up and we’ve had enough. The system is not functioning properly, and this is not tenable. It tells the government that we’re serious about addressing these shortfalls.”

In November 2011, lawyers from across the province rallied to call for a boost to legal aid funding, staging simultaneous demonstrations in Vancouver, Victoria, Kamloops, and Penticton.

This week, they made their presence felt again as lawyers who normally take on legal aid cases refused to perform duty counsel services, such as representing people taken into custody soon after their arrest. In February, the job action escalates to the first two weeks of the month, then the first three weeks of March, before a complete withdrawal of services in April.

On Dec. 30, the province announced an extra $2.1 million in funding to the Legal Services Society, the legal aid provider in B.C. for family and child protection services, but Gill says that will not make a significant difference.

The TLABC claims the provincial government should be directing more of the $100 million it collects in provincial tax on legal fees towards legal aid, which they say was the original intention of the tax.

Gill says a lack of substantial investment by the government will provoke more job action, and that major legal aid cases could be next up for a potential boycott, as happened during Ontario’s legal aid boycott from 2009-2010.

“The first day was successful and we’re going strong. We’re going to remain united. If it doesn’t lead to some real change, it is going to be escalated further,” Gill says. “Continual underfunding of legal aid by the provincial government means access to justice for average people and the most marginal people in society is cut off.”

Governor General David Johnston announced 66 new appointments to the Order of Canada on Dec. 30, 2011.

David W. Scott

There are five lawyers in the group of new appointees including former prime minister Paul Martin Jr., who has bee accorded to the highest honour of Companion of the Order. Martin was called to the Ontario bar in 1966 and has spent most of his career in business and politics.

The Order of Canada is one of Canada’s highest civilian honours. It was established in 1967 during Canada’s centennial year to recognize a lifetime of outstanding achievement, dedication to community and service to the nation. There are three areas of appointment: companion, officers and members

Daphne Dumont Photo: Gail J. Cohen

Recipients will be invited to accept their insignia at a ceremony to be held at a later date.

Officers

David W. Scott has been made an officer of the Order of Canada for his contributions to the legal profession and for his charitable activities. Scott is is co-chairperson of Borden Ladner Gervais LLP and Counsel in the Ottawa office. He was called to the Ontario bar in 1962 and is certified by the Law Society of Upper Canada as a specialist in civil litigation. He was appointed Queen’s Counsel in 1976 and has been honoured with awards from many legal associations in Canada and is well known for his pro bono work. He is also a former LSUC bencher.

Members

Aaju Peter Photo: Gail J. Cohen

Charlottetown family lawyer Daphne E. Dumont, a former president of the Canadian Bar Association, has been named a member of the Order of Canada for her contributions as a lawyer and volunteer with various legal associations. Dumont earned her law degree at Oxford University in 1976, becoming the first woman admitted to study law at any of the Oxford men’s colleges. She served on the national task force on gender equality in the legal profession with former Supreme Court justice Bertha Wilson and also worked for five years on a CIDA-funded development project to introduce civil legal aid to rural China. She was called to the P.E.I. bar in 1978 and is a partner in Macnutt & Dumont.

Mary Margaret Hetherington of Calgary, Alta. has been recognized for her pioneering achievements as a woman in law and for her work in northern communities. Hetherington has been a judge for the courts of appeal in Nunavut and Alberta and is highly regarded for breaking new ground in the field of alternative dispute resolution.

Aaju Peter is a lawyer and clothing designer in Iqaluit, Nunavut. She is honoured for her contributions to the preservation and promotion of Inuit culture and language. Peter was born and raised in Greenland, and moved to Iqaluit in the early 1980s. She is a mother of five and is a graduate of the ground-breaking Akitsiraq Law School and is well-known for her sealskin creations.

The full list of appointments is here.

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Small businesses contemplating a temporary layoff of workers should consult with an expert before making a mistake that could cost them more than the savings of laying someone off.

Cover off the possibility of temporary layoffs by including it in an employment contract, says Doug MacLeod.

As a new year begins and employers brace for what the economy might deliver such as softer sales, cost cutting efforts such as terminations, reduced work week with employment insurance buffer, or layoffs may be on the agenda if they think it’s a short-term blip.

But one employment lawyer says employers should consult with someone other than the Ministry of Labour before making any quick decisions. Doug MacLeod of MacLeod Law Firm in Toronto says that while under Ontario’s Employment Standards Act employers can temporarily lay someone off for 13 weeks without any notice of termination or obligation to the employee, what the ministry may not say is that a temporary layoff could result in a wrongful dismissal under common law.

MacLeod has received calls from employers who have temporarily laid off employees who then received a letter from a lawyer claiming the laid-off employee has been wrongfully dismissed. After reviewing the situation, the employer is often advised that the employee has likely been wrongfully dismissed.

“For example, let’s say it’s a 20-year employee who is a foreman with four direct reports — that person could be entitled to 18 to 21 months notice,” says MacLeod.

One of the best ways to avoid the problem, says MacLeod, is to cover off the possibility of temporary layoffs by including it in an employment contract. By reserving the right to temporarily lay off an employee in an employment contract, an employer can avoid the common law obligation to provide reasonable notice. As long as the contractual provision complies with the Employment Standards Act, it is generally enforceable.

“The employment contract is the best kept secret in this area of law,” says MacLeod. “If you’re in a cyclical business that is not construction, or you have a small business and you have a blip in sales or you’re in the automotive sector and you have to let people go all of a sudden, if you’re in that kind of environment you need to anticipate layoffs may be needed.”

In an employment contract, employers can outline in advance what will happen if temporary layoffs are required.

“At least both parties know what they are getting into from the beginning,” says MacLeod, adding he has been advising employers to include temporary layoff language in all employment contracts, especially since 2008 when the economy first turned downward.

“I wouldn’t say it’s the norm, but if you’re a small business employer and you need to turn on a dime this allows you to do that in the short term, without having to worry about paying a 20-year employee 18 months pay, which might bankrupt you,” he says. “That’s what happens — an employer looking to save costs for two or three months ends up owing someone a year-and-a-half in pay.”

Also, under the Employment Standards Act, a temporary layoff can also be extended up to 35 weeks of the year. So while some employees might be able to make do for a month or two by collecting employment insurance or getting a part-time job, an extension of the layoff could force them to make other choices.

“Most people can’t afford to stay unemployed for that long — 13 weeks is one thing but 35 weeks is quite another, so what happens is they quit and get another job,” says MacLeod. “It’s not as simple as it seems — there’s a lot going on on both sides.”

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While it’s no longer done in Ontario or Manitoba, some provinces across the country still confer Queen’s counsel appointments on members of the bar. Most of them are made at the end of December, so here’s a roundup of the latest annoucements as well as those made earlier this year.

New Brunswick appointed 11 new QCs in 2011. Photo: Government of New Brunswick

There are 104 new Queens counsel in Alberta, which goes through the process every two years.
“This designation recognizes the excellent skill and expertise exhibited by lawyers in Alberta,” said Minister of Justice and Attorney General Verlyn Olson making the announcement on Dec. 30. “It is also a mark of the outstanding contributions they have made to the profession and in their communities.” The extensive list of honourees from both the public and private sector can be found here.

In Nova Scotia, Minister of Justice and Attorney General Ross Landry says the 12 Queen’s counsel appointees in that province have earned the respect of their colleagues and many others by making strong personal contributions to their communities and the legal profession. The recommendations for the appointments are made to cabinet by an independent advisory committee. See the full list of Nova Scotia’s QCs named Dec. 22 here.

In British Columbia, 28 lawyers received the Queen’s counsel honour on Dec. 22 from Attorney General Shirley Bond. The QC designation is an honour conferred on members of the legal profession “to recognize exceptional merit and contribution.” The list of all 28 B.C. appointees is here.

In Saskatchewan, the QC honours have been expanded to include solicitors and corporate counsel “who have contributed to the legal profession in the courtroom,” as well as the traditional barrister recipients, said Justice Minister and Attorney General Don Morgan. “These exceptional recipients being honoured with a Queen’s Counsel designation have a range of experience and represent the very best of our legal community.” The 16 honourees in Saskatchewan can be found here.

Also on Dec. 22, Pamela J. Williams was given the QC honour in Prince Edward Island by Janice Sherry, minister of Environment, Labour and Justice and Attorney General. “Pamela Williams has distinguished herself through her professional work, her leadership within the legal community, and her community involvement,” said Sherry.

New Brunswick named its QCs back in October. The 11 N.B. lawyers named are here.

“It is a prestigious honour and I congratulate the 11 individuals on their appointments. They represent the professionalism and dedication that are the qualities of Queen’s counsel,” Felix Collins, Newfoundland and Labrador’s minister of Justice and Attorney General said when making his announcement in June. The senior barristers who’ve been honoured are here.