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| Emerging Professional Issues Initiative (EPII) |
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EPII Issues/Projects
Overview of EPII Issues
The EPII issues list evolves continuously and is grouped around six themes:
1. Future of the Legal Profession
a) Young Lawyers Conference Report on The Challenge of Change
b) Challenging the Orthodoxies of the Legal Profession
c) CBA Model Code of Professional Conduct
2. Delivery of Service to Clients
a) Multi-Disciplinary Practices (MDPs)
b) Paralegals
c) Real Estate
d) Legal Aid
e) Unbundling Legal Services
f) Prepaid Legal Services
g) Collaborative Lawyering
h) Alternative Billing Methods
i) Preventive Law
j) Pro Bono Service to Clients
3. Protecting Solicitor-Client Privilege, Confidentiality and the Duty of Loyalty
a) Lobbyist Registration
b) Mail Opening by Customs Officials
c) Anti-Terrorism and “Lawful Access” Legislation
d) Proceeds of Crime (Money Laundering)
e) Lawyer Conduct (Sarbanes-Oxley Act)
f) Conflicts of Interest and the Duty of Loyalty (R. v. Neil; Strother.)
g) Joint CBA/AASB Policy Statement on Audit Enquiries
4. Professional Liability
a) Limited Liability for Professionals
b) Civil Penalties for Tax Advisors
c) Disclosure of contingent gains and losses (audit enquiries) – Canada and U.S.
d) Corporate governance
5. Globalization of Legal Practice
a) GATS/WTO negotiations on international trade in services
b) Interjurisdictional practice
c) NAFTA Working Group on Temporary Business Travel
d) Bilateral and multilateral free trade negotiations
e) Competition Bureau review of regulated professions
6. Technology and the Practice of Law
a) Technology Impact Advisory Group (TIAG)
b) Electronic Commerce, Extranets and Privacy
c) Technology for Small Firms and Solo Practitioners
d) Survey of the legal profession’s use of technology
e) Privacy
f) Large Value Transfer System
g) Class Actions
7. Enhancing Law Firm Practice
a) Leading the Canadian Law Firm in the 21st Century
b) Client Development Through the RFP Process
c) Retention of Associates
d) Achieving Work-Life Balance
e) CBA PracticeLink
f) Mentoring
In fall 1997, an EPII Report was distributed to CBA Council. Due to great demand both within and beyond the CBA, a “Spring Report” was sent to all CBA members and managing partners of many CBA law firms in March 1998. EPIIgram (now Trends) has been published electronically since June 1999. Each edition focuses on a particular EPII issue.
Summary of EPII Projects
- Achieving Work-Life Balance: The January 2002 EPIIgram focuses on the challenge to lawyers of achieving work-life balance. The fall 2002 EPIIgram focuses on members’ responses to an on-line survey about their work-life balance experience. The November 2003 EPIIgram included a survey of law firms regarding their attorney retention practices. The April 2005 EPIIgram dealt with “The real cost of losing legal talent.” The Work/Life Balance Toolkit and the RARE Finds Resource Centre were created and published on CBA.org. (see separate note).
- Alternative Billing Methods: The September 2001 EPIIgram focuses on task-based billing, e-commerce and extranets as possible alternatives to the billable hour.
- Audit Inquiries: The October 2001 EPIIgram reviews the practical and ethical concerns of lawyers in responding to audit enquiries on behalf of their clients (see separate note). The May 2006 EPIIgram (now Trends) deals with audit enquiries emanating from the U.S. CBA is negotiating changes to the Joint Policy Statement, in light of changes to international accounting standards that came into effect in Canada starting in December 2010.
- Civil Penalties: The 1999 Federal Budget proposed civil penalties against third parties who make false statements that could be used for tax purposes. The Joint CBA/CICA Taxation Committee argued that the proposal was too broad, and worked with Finance Canada to change the liability threshold from “gross negligence” to a concept of “culpable conduct”. This issue is the focus of the March 2000 EPIIgram (see separate note). In 2010, CBA objected to proposals to have tax advisors report aggressive tax planning, as it would force lawyers to breach solicitor-client privilege. The Finance Minister assured CBA that the regime was not intended for disclosure of privileged information and undertook to consider a change to state that a lawyer or Quebec notary is not required to report any specific information that the lawyer believes, on reasonable grounds, is subject to solicitor-client privilege.
- Class Action: A national class action database was launched in January 2007 on cba.org. It shares information with lawyers and judges to overcome administrative problems with multi-jurisdictional class actions (see separate note). CBA launched a Class Action Task Force in February 2010 (see separate note). The Task Force developed a judicial protocol to consolidate proceedings as an interim solution, which was adopted by Council in August 2011. The Task Force will seek a permanent, legislative solution for adoption in all jurisdictions
- Collaborative Lawyering: Collaborative lawyering, practiced almost exclusively by family lawyers, combines aspects of litigation and mediation. Proponents say it offers better results for clients and greater job satisfaction for lawyers. This is the focus of the June 2001 EPIIgram.
- Corporate Governance: CBA was an alliance partner with the Institute of Corporate Directors (ICD), CICA and other organizations in the Directors Education Program of the ICD and the Rotman School of Business. The objective of the DEP is to develop standards for the appointment of directors to corporate boards. An EPIIgram on directors’ education was published in December 2003.
- Conflicts: In March 2006, CBA offered an on-line CLE program entitled “How Murky can a Bright Line be: Coping with Conflicts of Interest in the Wake of R. v. Neil”. CBA intervened in the Strother appeal to the Supreme Court of Canada in 2006 and later offered an online PD program entitled “Conflicts of Interest in the Wake of Strother” (November 2007). In March 2007, CBA created a Task Force on Conflicts of Interest. (see separate note). The Final Report of the Task Force was published in August 2008 and amendments to the CBA Code of Professional Conduct adopted in February 2009. Work continues on the use of engagement letters and on the current client rule.
- Extension of Privilege to Patent and Trademark Agents: The National Intellectual Property Law Section developed a discussion paper on this matter. In April 1998, the National Executive Committee decided that the issue would best be considered in the broader context of the future of the legal profession. A later request to CBA to reconsider the matter was declined by the Executive Officers. (see separate note). CBA commissioned a discussion paper by Professor Adam Dodek, and published Solicitor-Client Privilege in Canada: Challenges for the 21st Century in February 2011. The paper identifies issues likely to arise as other professionals (including patent agents) seek a class privilege.
- Future of the Legal Profession: In August 2000 a report for lawyers entitled The Future of the Legal Profession: The Challenge of Change was published by the CBA as follow-up to a Roundtable on the Delivery of Legal Services. Several EPIIgrams were published on issues flowing from the Report. In January 2009, CBA engaged Professor Richard Susskind as “Special Adviser” on the Future of the Legal Profession. (see separate note).
- Globalization of Legal Practice: A WTO/GATS subcommittee of the International Professional Issues Team is responsible for developments in this area. CBA members attended the WTO Ministerial Meeting in Seattle in November 1999, and met regularly with federal negotiators in April 2000. The February and October 2000 EPIIgrams are based on WTO/GATS. In August 2000, a submission to the Department of Foreign Affairs and International Trade set out the CBA’s views on the extent to which the WTO rules for the accounting profession could be applied to the legal profession. In addition, the CBA and the ABA had begun talks around issues of North American mobility of lawyers. The April 2004 EPIIgram detailed the inter-provincial mobility protocol (see separate note). The CBA closely monitored the Clementi review of the regulatory framework for the legal sector in England and Wales. This review, published in December 2004, made recommendations on regulatory structures, including self-regulation. It also considered new business structures, including legal disciplinary practices and multi-disciplinary practices. The CBA prepared a submission for the UK review. A November 2004 EPIIgram addressed North American mobility for lawyers. The March 2005 EPIIgram addressed the potential for non-lawyer ownership of law firms in the UK. CBA also wrote to the UK government, in response to Clementi’s report, to emphasize the importance of preserving the independence of the legal profession (see separate note). These international developments inspired Canada’s Competition Bureau to examine anti-competitive aspects of regulated professions, including the legal profession. The CBA constituted a task team to advise the Board of Directors (see separate note).
- Law Firm Leadership: In September 2005, CBA offered the first “Leading the Canadian Law Firm in the 21st Century” conference, targeted at managing partners of large and mid-size firms. The conference is now a popular annual event. The seventh was held in Vancouver in October 2011. (see separate note).
- Legal Aid: In May 2000, the CBA launched a National Legal Aid Initiative which includes an Advocacy Resource Kit for Bar leaders and the establishment of the CBA’s Legal Aid Watch. Research on the constitutional right to legal aid, entitled Making the Case, was published in February 2002. In Fall 2002, the CBA established a coalition of groups serving the low income poor with legal needs, with a view to pursuing a test case on the constitutional right to legal aid. In August 2004, the CBA committed to pursuing test case litigation. The case was filed in June 2005 in British Columbia but ultimately the Courts held that CBA lacked standing. CBA is now proceeding on a litigation strategy with an individual or group of individuals. (see separate note).
- Mentoring: The March 2006 EPIIgram (now Trends) reviews best practices around mentoring in law firms. The Pro Bono Committee promotes pro bono activities as one means of achieving access to justic. (see separate note).
- Multi-Disciplinary Practices (MDPs): In August 1999, the International Practice of Law Committee issued its final Report on MDPs, Striking a Balance, to Council. Debate of the position taken in the Report occurred throughout 1999-2000 and included a December 1999 survey on MDPs distributed to CBA members via EPIIgram. At the August 2000 Annual Meeting, CBA Council resolved that MDPs should be permitted, subject to a series of conditions. MDPs were the subject of the October 2000 EPIIgram. A further resolution on MDPs was adopted by CBA Council in February 2001, which clarifies the conditions under which MDPs should be allowed (see separate note).
- NAFTA Temporary Business Travel: The International Professional Issues Team has considered the experience of CBA members questioned on privileged information when traveling for business purposes to NAFTA countries.
- Paralegals: The CBA intervened in the Romanowicz appeal to the Ontario Court of Appeal and in the Mangat appeal to the Supreme Court of Canada. The federal government now recognizes only Canadian lawyers, Quebec notaries and CSIC members as authorized representatives.
- CBA PracticeLink: CBA PracticeLink launched in September 2003. The website has been well received by members since that time, and continues to be updated with new articles, tips and podcasts every week. Targetted e-newsletters update members on new and informative content on CBA PracticeLink. (see separate note).
- Prepaid Legal Services: Prepaid legal service plans allow subscribers to pay a fixed amount each year and receive a pre-set amount of legal services in return. The exact nature of the services differs from plan to plan. The May 2001 EPIIgram addresses the benefits and possible concerns to lawyers and clients of prepaid plans.
- Preventive Law: The March 2002 EPIIgram covers the growing phenomenon of preventive law and includes a “legal checkup”, tips for marketing a preventive law practice, and resources for lawyers wishing to establish a preventive law practice.
- Professional Liability: Amendments to the Canada Business Corporation Act enacted a modified proportionate liability scheme in 2001, based in part on CBA submissions to the Senate Banking Committee (see separate note). The January 2001 EPIIgram looked at LLPs.
- Privacy: The May 2002, February 2002 and January 2004 EPIIgrams consider the federal private-sector privacy legislation and its implications for lawyers and their clients. CBA has also commented on the privacy aspects of so-called “lawful access” proposals (see separate note).
- Protecting Solicitor-Client Privilege and Confidentiality: The CBA’s work on anti-terrorism, proceeds of crime (money laundering), opening of mail by customs officials and lobbyist registration legislation is focused on the protection of privilege and confidentiality. Several court interventions and work on the Sarbanes-Oxley legislation in the United States also address these issues. In fall 2006, and again in winter 2007, CBA conducted on-line CLE programs focused on recent Supreme Court of Canada rulings on privilege. The Ethics Committee issued FAQs on issues relating to privilege and confidentiality in fall 2010. CBA commissioned a discussion paper by Professor Adam Dodek, and published Solicitor-Client Privilege in Canada: Challenges for the 21st Century in February 2011.
- Real Estate: A joint CBA-FLS National Real Estate Initiative ran from February 1999 to November 2002. EPIIgrams were published from 2000 - 2002. (see separate note).
- Retention of Associates: The November 2003 EPIIgram surveyed law firms on lawyer retention practices. The April 2005 EPIIgram dealt with “the real cost of losing legal talent” (see separate note) All three CBA “Leading the Canadian Law Firm in the 21st Century” conferences addressed associate retention and the “talent pool” (see separate note).
- RFPs for Law Firms: The November 2005 EPIIgram deals with bidding for work through the request for proposals process.
- Technology and the Practice of Law: Initiatives on the legal implications of Y2K compliance and the protection of personal information transmitted electronically have been pursued. A survey of use of technology in the profession ran in spring 2001. Internet-delivered PD programs are offered, and the Technology Impact Advisory Group (TIAG) developed CBA PracticeLink, an on-line practice support centre for members.
- Unbundling Legal Services: Unbundling legal services is an emerging phenomenon designed to address some clients’ inability to afford legal services. The March 2001 EPIIgram addresses the issues raised by unbundling. Law societies have started to adopt rules to govern unbundled legal services.
NEXT STEP
- The list of EPII issues will continue to grow through consultation within and beyond the CBA.
Initiatives
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