Law Times

July 13, 2015

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Page 2 July 13, 2015 • Law Times www.lawtimesnews.com NEWS changes to its existing regulations on advertising. Interested parties have until mid-October to com- ment on whether the law society should make the proposed changes, leave things as they are or con- sider other options. Among the proposed changes are additions to existing commentary that give examples of mar- keting practices that would contravene the law so- ciety's rules. They include "failing to disclose that the legal work is routinely referred to other lawyers for a fee rather than being performed by the law- yer;" "misleading about the size of the lawyer's prac- tice or the areas of law in which the lawyer provides services;" "referring to fee arrangements offered to clients without qualifications;" and "advertising awards and endorsements from third parties with- out disclaimers or qualifications." The commentary also refers, in language deal- ing with instances of "marketing practices which may be inconsistent with a high degree of profes- sionalism," to "images, language or statements that What's Market is much more than a deal summaries database. Not only can you search, review, and compare expertly prepared summaries of recent deals and fi lings – you'll see exactly how this information impacts your deal. Do you need to determine the appropriate break fee for your deal? Use What's Market to quickly compare break free provisions across multiple deals in a specifi c industry and create a custom report on market trends. This is just one example of the many ways What's Market on Practical Law Canada gives you the practical know-how to get your deal done faster and more effi ciently than ever before. 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In his 160-page decision Wednesday in Trillium Motor World Ltd. v General Motors of Canada Ltd., Justice Thomas McEwen found Cassels Brock owed contractual and fiduciary duties to some or all of the class members in the case and had breached those duties. As well, he found it owed a duty of care that it had also breached. In a statement, Cassels Brock general counsel John Birch said it's busi- ness as usual for the firm and it's actively pursuing an appeal. He noted the judgment "creates potentially indeterminate liability for lawyers." "Of course, we are disappointed," said Birch. "But we remain confident that we conducted ourselves properly and in accordance with our profes- sional responsibilities." He added: "We feel that the findings are not justified on the evidence and that there are significant legal errors in the decision. We continue to believe that Trillium Motor World and the other automotive dealers had not become our clients in the circumstances, and they were each repre- sented by their own independent legal counsel." In May 2009, General Motors eliminated about 200 dealers during the federal bailout of the company. Besides General Motors, the lawsuit also named Cassels Brock, which had been retained to represent Cana- dian dealers during the company's restructuring. The claim alleged Cas- sels Brock had failed to disclose to the dealers it was also acting for the Canadian government during the GM bailout and had breached its du- ties to them. Also as part of his decision, McEwen found General Motors hadn't breached the Arthur Wishart Act and dismissed the action against it. For full coverage of the ruling, see canadianlawyermag.com. LT A enforcement 'most important element': otLa president decision to merge, Jolliffe says the lacklustre Canadian legal mar- ketplace was a bigger motivator. "The Canadian market has been pretty stagnant or contracting on the legal side," he says. "The same is true for business generally in Canada. Our clients are more and more looking into international markets and especially developing markets for their growth." David Fennell, chief executive officer of Wragge Lawrence Gra- ham, agrees the two firms were a good fit. "Gowling WLG is a true coming together of like-minded firms," he said. "In addition to complementary practice and sector strengths, a strong com- mitment to client service, and a shared vision for international growth, both WLG and Gowlings have fostered internal cultures that champion a people-first approach, innovation, and collaboration." An international board com- prising the founding firms' chief executive officers along with two additional representatives from each of them will govern Gowl- ing WLG. The firm will provide services in areas including life sciences, manufacturing, power generation and distribution, projects and infrastructure, real estate, energy, and technology and communications. Jolliffe says it was important for Gowlings to maintain its Ca- nadian identity. "We've seen other very good firms, U.S. and U.K. firms, come to Canada and pick up a Cana- dian law firm to become part of their existing international plat- form," he says. "What that has meant is it's a good thing for those [Canadian] firms but they've sort of given up their name and identity to join an international firm. Our feeling was that we should cre- ate our own, a platform that was particularly suited to the Cana- dian market and the needs of Canadian business." LT Keeping Canadian Id key: Jolliffe are violent, racist or sexually of- fensive, take advantage of a vul- nerable person or group or refer negatively to other lawyers, the legal profession or the adminis- tration of justice." For Merkur, the proposed changes are a step in the right direction but they don't go nearly far enough. He wants to see a to- tal ban on advertising in the in- dustry. McLeish agrees. "I would be the first one to put up my hand for a total ban," he says. Maia Bent, president of the On- tario Trial Lawyers Association, calls the proposed changes a good first step in addressing a lack of transparency in much of Ontario's legal advertising. She hopes the law society will strictly enforce the changes if it approves them. "The most important element is going to be enforcement," says Bent. "There's a sense that some firms are breaking rules because they can get away with it. The law society is assuring us [en- forcement] is going to be a point of emphasis for them and we're definitely welcoming that." Some advertising can be use- ful, she says, adding a complete ban "wouldn't be necessary if the most egregious conduct was brought under control." But calls for a ban, she says, do "speak to the frustration of people who would like all advertising to be tasteful and with integrity." Trevor Farrow, a professor at Osgoode Hall Law School who specializes in professional and judicial ethics, says there are tensions that require balancing when it comes to regulating legal advertising. On the one hand, says Farrow, the more aggressive advertising that has emerged in recent years puts a heightened ob- ligation on law societies to ensure lawyers properly follow the ethi- cal principles they've adopted. On the other hand, he says, advertising can be an element in increasing access to justice by "empowering people to under- stand what services are available, what they are, where they can go, who they can talk to, and what they can cost." For example, he says, many people may be aware it's possible to pay for legal ser- vices on a contingency-fee basis only because they've seen ads to that effect. But advertising, he notes, can be a double-edged sword. "Advertising can be done in tasteful ways, in fair ways, and in the alternative, in ways that bring the profession in disrepute. That's the line that the law soci- ety needs to walk because the public needs to have confidence in lawyers' ability to fairly and properly and honourably regu- late themselves." Whatever the solution may be, an all-out ban isn't it, says Farrow. "I think banning adver- tising is impractical at this stage," he says. "It's out of touch with mod- ern social and business realities, and I think if advertising is done honourably and well and with integrity, it can be a tool among many that help people under- stand and access legal services that they need. If we can't speak to the public, if we can't be out there in different ways, how is the public going to know what we do?" LT Continued from page 1 Continued from page 1

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