Law Times

Law Times • November 28, 2011 FOCUS PAGE 11 Follow up on dormant clients, lawyer says Continued from page 10 of a unanimous three-judge panel. "CN should have been the first to know about McKercher's intention to act on the Wallace claim and should have been kept informed of developments on this front. This would have given CN the opportunity to investigate its options for addressing the situation." Chester says law firms should think about making someone responsible for following up on files where there has been a long period without rendering accounts. "You might have a rule that if nobody has docketed at any time in the last two years and there's no work in prog- ress, that it should be closed unless the lawyer explains to us why it should stay open," Chester says. "The duty of loyalty in most cases does not survive the end of the retainer, so we are able to act against former clients. What Wallace demonstrates is that the dividing line between a former client and a current client can be quite messy." By actively closing files, Chester says firms can make the distinction clear and avoid problems later. In his view, the decision should also give pause to firms that take on "courtesy mandates which don't involve real work" such as intellectual property matters in which the firms are merely renewing patents or holding on in case a problem arises. "I like to reserve the client label for nice people who give me work and pay me money," Chester says. "If you do act as an agent of record or hold a power of attorney, you've got to live with the consequences of that. You may not be able to say it wasn't a current client relationship." Malcolm Mercer, another member of the CBA's con- flicts task force and a partner at McCarthy Tétrault LLP, says the case is important for the guidance it gives on when the bright-line rule explored in the landmark Su- preme Court of Canada case of R. v. Neil will apply. Justice Ian Binnie's decision in that held that in gener- al, "a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client," even if the two mandates are unrelated unless both clients consent after receiving full disclosure. "The most important point from my perspective is the Court of Appeal concluded that absent a finding of substantial risk of material and adverse effect, there was not an illegal conflict," Mercer says. Crucially on that point, the appeal court found McK- ercher hadn't gained any material confidential informa- tion about CN during the period of its retainers. Gavin MacKenzie, another Heenan Blaikie partner who acted for McKercher in the appeal, says large in- stitutional clients like CN that could be considered professional litigants also have something to learn from the decision after Ottenbreit decided it was rea- sonable for the law firm to infer the company's con- sent to act against it despite its subsequent objection. CN claimed its policy was that retained law firms that want to act for clients adverse to its interests should always seek consent, but Ottenbreit said it never made that clear to McKercher. "If you want to prevent a law firm acting against you, you should make it a term of the retainer agreement be- cause it's likely consent will be implied under the profes- sional litigant exception," MacKenzie says. Advice for a successful legal blog BY MICHAEL McKIERNAN Law Times T he Ontario Condo Law Blog published by con- do law firm Gardiner Miller Arnold LLP may have just passed the three-year anniversary of its first post, but according to head blogger Chris Jaglowitz, it has been closer to four years since the project began. Jaglowitz says it took him al- most 12 months to bring the idea to fruition due to fears that a pre- mature launch would end with the firm's effort consigned to the large waste heap of legal blogs. "A lot of lawyers just abandon their blogs," he says. After settling on the style, look, and target audience and having consumed an untold number of posts from the most successful bloggers, Jaglowitz felt he was ready for prime time. "We spent a lot of time lin- things up, but once we ing launched we had a fairly good idea of who we were and how we were going to hold ourselves out," he says. "We had some good ideas before we launched and that made things a lot easi- er, plus we were a bit more con- fident in what we were doing." Adrian Dayton, a New York-based lawyer and author of Social Media for Lawyers: Twitter Edition, says many lawyers struggle to incorpo- rate blogging into a schedule already packed with paid work. "It's not enough to create two or three blogs and then stop," says Dayton. "You need a regular rou- tine even if it means just one post a week. It's kind of like learning to work out or go to a gym twice a week. You can't just flip a switch." Jaglowitz has settled into a rhythm of blogging about once a week. Although he admits he hasn't always met that stan- dard, he says he has developed some tricks to maintain his output levels. During less hec- tic times, he prepares a couple of posts to go in reserve that can go up fully formed when an avalanche of work hits. "The other thing I do to keep things going is some- times I look back at what I've been doing on Twitter and pull out a few good ones to make a compilation piece. A lot of the people who read the blog don't follow me on Twitter, so they won't have seen them before." All of that discipline has paid off for Jaglowitz, who says the blog has solidified his links with the key players in the condo in- dustry, including property man- agers, directors, and unit owners who frequently engage him after reading his online posts. "As a business generation tool, it's pretty economical and effec- tive. You can reach such a massive audience for a very modest cost." But Dayton warns poten- tial bloggers not to expect the business to start rolling in im- mediately. "The people who least believe it's worth their time and effort are the ones who have been blog- ging for a few months because it's very rare to see fast results," he says. "It's a long play, and you're going to be read by people you would never have reached otherwise. I know one lawyer who blogged for two years on a weekly basis before it brought in any business, but he was a junior partner who then landed a sub- stantial piece of IT business." Having launched his blog in November 2004, David Can- ton has a pretty large back cata- logue of posts. He notes it's not unusual for a client to come to him off the back of a two-year- old post on his blog, elegal.ca. The lawyer with London, Ont., firm Harrison Pensa LLP says he started the blog because it was increasingly difficult to cram all of his ideas into his weekly column with the Lon- don Free Press. As a technology lawyer, he also had the added incentive of keeping up with the Joneses in his field. "I thought it was a good way of differentiating myself, espe- cially in the tech space, which is where I practise and where the clients are that I want to get," he says. He notes previous blogs are also a useful resource for quickly refreshing his own memory on a particular issue or as a primer for existing clients with a problem he has written on in the past. "Being able to almost in- stantly e-mail someone a link to stuff you've written before on a subject that they're asking about is really quite a powerful tool," Canton says. In 2004, setting up a blog wasn't as straightforward as it is for lawyers now, but Canton says he got support from his law firm. "I'm not sure they all under- stood exactly what it was but they clearly understood that I saw value in it, so they were quite keen to back it," he says. But Dayton says he's surprised at how often the leadership at law firms dismisses blogging. He thinks more firms should em- brace it. Even if they have a social media presence, he says it's often "more about building a big brand name as opposed to showing off the firm as thought leaders." "Social networks are a great way to share good content, but the blog is where you create it. It's good to see great content be- ing passed on, but people should think about being the creator who is actually writing the great infor- mation that gets passed on." growing pains? Your disbursement investment needs are growing along with your practice but cash flow has become an issue. BridgePoint can help. We have designed a variety of flexible disbursement financing alternatives to help our law firm clients grow their practices while ensuring their clients realize the highest potential recoveries for their claims. In addition to our law firm and plaintiff lending services, we have financing partnerships with a growing roster of IME providers across Canada to offer deferred payment arrangements until settlement. Contact us to learn more and to arrange a presentation. 1 888 800 4966 | bpf in.com Untitled-1 1www.lawtimesnews.com 4/28/11 10:40:19 AM

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